- The Washington Times - Tuesday, January 9, 2001

With each new year, Chief Justice William Rehnquist issues a report on the state of the federal judiciary, and just about every time he lodges a major complaint: federal judges are underpaid. Despite the 2.3 percent pay raise that went into effect Jan. 1, he says Congress has reneged on its promises to compensate the judiciary adequately. As a result, says Justice Rehnquist, "Judicial salaries have not even kept pace with inflation."

The latest increase brings the annual salary of appeals court judges to $153,900 and that of district court judges to $145,100. If you're like me, your response upon hearing about a job that pays $145,100 a year is to say: "Where do I apply?" But you and I are probably not the sort of people that you and I would like to have sitting in judgment on our cases. Sad to say, watching "Judge Judy" on a regular basis is not considered suitable preparation for the federal bench.

It's true that at these rates, you don't find many federal judges sleeping under bridges. But everything is relative. What judges earn would be awfully good money for a plumber, salesperson or journalist, but it's not enough to enlist the services of a corporate CEO, brain surgeon, NBA rookie or rock star. And these days, it's not a lot of money for a lawyer at a big law firm, which is what most judges could be.

At the big Chicago law firms, starting salaries for new hires straight out of law school range from $125,000 to $140,000. Partners, of course, can earn several times more. Even many law professors do better. A star federal judge with stores of wisdom and years of experience in private practice and on the bench may find that as soon as her youthful clerks leave government employ, they pull down bigger paychecks than she does.

Judges do have certain advantages. As U.S. 7th Circuit Court of Appeals Judge Richard Posner has noted, many of the lawyers in big law firms "work like dogs, and most federal judges do not." Barring serious misdeeds, federal judges also enjoy lifetime employment and, if they stick around long enough, handsome pensions. The lure of interesting work and considerable power assures a long line of candidates for every opening.

But the number of people leaving the bench also has been on the rise, with 54 district and circuit judges resigning in the 1990s, a 32 percent increase over the 1980s. Increasingly, the judiciary is most attractive to lawyers who are already wealthy or young enough not to have to pay for their children's college education. The work has gotten more demanding, too, as caseloads have grown.

Plenty of good lawyers pass on the opportunity because they don't want to make the financial sacrifice, or because they think the money isn't enough to justify the loss of privacy that goes with the job. Justice Rehnquist worries that "the question will be not who is most fit to be chosen, but who is most willing to serve." Considering the great importance of what federal judges do making daily decisions that affect the life, liberty and property of citizens we all have a vital stake in the quality of the judiciary.

If $145,100 doesn't sound like a financial sacrifice, look at it in terms of what economists call "opportunity cost": Someone on the bench who could be making half a million a year in private practice is not so much earning $145,100 as he is paying $354,900 for the privilege of being a judge. For many people, it's not worth that much.

Why does Congress resist more money for judicial salaries? "It's a matter of self-importance on the part of Congress," says David Keating of the National Taxpayers Union. "People in Congress think no one should be paid more than they are." Maybe Congress deserves a lot more money, too, but it's not willing to take the political risks of voting for a big raise, so judges must also suffer.

Justice Rehnquist thinks the least that should be done is a 9.6 percent raise to make up for money lost to inflation. But Posner says merely keeping up with inflation is not enough. "That does nothing about bringing you closer into phase with your peers," he says. "You need real raises to maintain some relation with others in the profession."

So getting and keeping the best judges we can find may cost a lot more than we're paying now. And the value of not having lousy judges handle a case that affects you? Priceless.

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