Linkage holding down pay for federal judges

St. Louis Daily Record & St. Louis Countian, May 16, 2007 by Donna Walter

Twenty years ago Congress linked its members salaries to those of federal district judges with the hope that the public wouldn't mind so much when Congress approved salary increases.

But faced with voter hostility, Congress continued to vote down pay increases, so judicial salaries have stagnated to the point where some say the federal judiciary is in danger of not attracting the best and the brightest.

Former Sen. John Danforth is among a group of former legislators who have voiced their opposition to the practice of linkage. The former senators and representatives enlisted the help of scholars from the Brookings Institution and the American Enterprise Institute for Public Policy Research, who analyzed the history and policy of linkage.

"For me, the key question is if you're trying to attract people to be federal judges or keep them, where are they coming from?" Danforth said in a telephone interview.

"If the pool were members of Congress, then pay comparable to members of Congress, I suppose, would be fine. But I can't think of any federal judges who came to the bench from Congress. Where they come from is the bar, the practicing bar. So that's the competition - not what congressmen are paid but what practicing lawyers earn," he said.

Members of Congress and district judges earn $162,500, according to information posted on the federal judiciary's Web site, www.uscourts.gov. That's barely more than the $160,000 first-year associates are now paid on both coasts.

The report

The scholars, Russell R. Wheeler and Michael S. Greve, examined a number of justifications for linking salaries and explained why each one doesn't work. Their findings were published in a report titled "How to Pay the Piper: It's Time to Call Different Tunes for Congressional and Judicial Salaries," released late last month.

One justification for linkage is to hold down the salaries of those who report to district judges, members of Congress, executive branch agency heads and deputy secretaries. But Congress has exempted a number of executive branch agencies from complying with the salary cap, the scholars found.

According to the report, the Veterans Affairs Department recently posted numerous job openings for doctors and dentists with maximum salaries ranging from $175,000 to $255,000; the Department of Veterans Affairs Health Care Personnel Enhancement Act of 2004 authorized the higher salaries.

A 1998 statute allows the Internal Revenue Service to fix the salaries of up to 40 officials at the vice president's salary, which is $215,700, the report said. These salary laws are not isolated incidents.

The scholars also refuted the idea that the jobs of the district judges, deputy secretaries and agency heads, and legislators are comparable enough to warrant equal salaries. Deputy secretaries serve briefly, and they may earn more in the private sector than had they not served in government, according to the report. In addition, the report found members of Congress who leave public service may also earn "healthy salaries" in the private sector.

But judges, who are appointed for life, forgo the potential for high salaries permanently, the scholars wrote, adding a parenthetical "we hope" to that statement.

The report also looked at whether the equal salaries represent equality among the three branches of government, whether other jurisdictions link judicial pay to legislator pay and whether public opinion supports or opposes linkage.

Financial obligations

Danforth recalled the individuals he recommended for federal judgeships were about 50 years old, an age when people have major financial responsibilities, particularly if they have families.

"I think it's going to be very difficult to attract them and keep them if there's a large differential between what they could be making or are making in the public sector," he said.

Judge Donald J. Stohr, who in January took senior status as a judge on the U.S. District Court for the Eastern District of Missouri, said in an interview last December that financial obligations played a part in his decision to be considered for a judicial vacancy.

Before joining the court 14 years ago, Stohr said, he had previously been invited to file an application with a commission appointed by Danforth to vet individuals interested in an appointment to the bench. But he had a family to support, and the time just wasn't right, he said.

"I knew coming in what the pay was," he said. "I had kids in college all over the place. A lot of that drives your decision in what you do, and it drove mine."

By the time he was nominated for the judgeship in 1992 - one of President George H.W. Bush's last judicial appointments - Stohr's five daughters "were pretty well raised, and college was pretty well taken care of," he said.

Even COLAs aren't certain

A federal magistrate judge who served in the District of New Jersey left the bench after 21 years of service. Judge Ronald J. Hedges told The Third Branch, the federal courts' newsletter, "It's hard not to be dissatisfied and disillusioned when you see your earnings erode over the years, and nothing being done to protect judges' salaries. I hope the Chief Justice's efforts to get a pay raise for federal judges are successful. The truth of the matter is, the salary is inadequate."