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The Other Crisis Facing the Federal Judiciary

By Stephen L. Carter
February 21, 2013 6:30 PM EST

Pope Benedict XVI’s announcement that he will step down at the end of this month has prompted some commentators to wonder why we don’t encourage U.S. federal judges to retire early, too. Actually, we do -- and too many are.

For years, judges have complained about their pay. The Ethics Reform Act of 1989 provided for annual cost-of-living increases for judges and members of Congress. Political pressures have frequently driven Congress to suspend its own pay adjustments; when it does so, it generally suspends those of judges, as well. This bizarre but by now almost automatic coupling has had unfortunate constitutional consequences.

The simplest way to understand the problem is that the framers of the Constitution expected judges to serve for life. They did not expect the same of legislators. Serving in the legislature was not considered a career position; it was not even considered a full-time job. Despite the changes in the nature of the work, we see echoes of this constitutional division in the simple fact that when a senator or representative decides not to seek re-election and enters the private sector, no one thinks the choice in the least peculiar. When a federal judge does it, we feel uneasy.

Cutting Pay

The problem isn’t going away. A recent survey asked retired federal judges why they stepped down. Although judges leave for complex reasons, the most common explanation was a desire to earn additional income.

“Grossly inadequate salary is demeaning and necessitated my retirement,” one judge wrote. “Had judges been fairly compensated I never would have retired.” Another was even more blunt: “Had Congress kept its promise of $125,000 in constant 1989 dollars, I would still be on the bench.”

Some context: $125,000 in 1989 dollars would be about $228,000 in 2012 dollars. A federal district judge currently receives an annual salary of $174,000. To most Americans, that probably sounds like a lot of money. But there are literally hundreds of executive-branch employees who earn more. So do first-year associates at many large law firms.

By effectively cutting judicial compensation -- and make no mistake, that is what has happened -- Congress is reducing the incentives to remain on the bench for life. The framers would have been appalled.

Article III of the Constitution reads that judges “shall hold their offices during good behavior.” As a non-Catholic, it is not for me to say whether life tenure for the pope is an indispensable feature of the faith. But the framers of the Constitution certainly believed it to be an indispensable feature of an independent judiciary.

Alexander Hamilton, in Federalist No. 78, suggested a relationship between life tenure and the quality of those who would be willing to serve: “Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

Why does this matter? Because “a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.”

Life tenure, then, was seen as the price of persuading talented lawyers to give up the lucrative work of practicing law. At the time of the framing, judicial compensation was set in part with the idea that the judges should find a lifetime of federal service lucrative, too.

Jarring Interests

John Adams, in his “Thoughts on Government,” expressed a similar view of the ideal judges: “Their minds should not be distracted with complicated jarring interests -- they should not be dependent on any man, or body of men; they should lean to none, be subservient to none, nor more complaisant to one than another. To this end they should hold Estates for Life in their Offices.”

But it isn’t enough to give judges the opportunity to remain at their posts. We should also supply a proper incentive. At the moment, the incentives are perverse. There is at least modest evidence to support the notion that wealthier judges are less likely to retire and seek outside income -- a proposition in accord with common sense. If this theory is correct, there are important distributional reasons for Congress to act, unless we want a federal bench in which the judges with the greatest experience are also those who are rich.

To be sure, salary isn’t everything. Federal judges receive plenty of non-monetary compensation. Their posts carry enormous prestige, and they exercise considerable power. Their salaries, at least in nominal dollars, cannot be reduced. Judges cannot be easily dismissed. They have enormous autonomy. Moreover, judges are part of what at least strives to be a high-commitment culture (such as the military), meaning that the drive to fulfill the common mission is in a sense also part of the compensation.

On the other hand, just because salary isn’t everything doesn’t mean that salary isn’t anything. At the margins, money income will continue to influence the behavior of judges, as it does the behavior of other workers. And as salaries continue to lag, and other costs continue to rise, judges will continue to leave, and in higher numbers.

Chief Justice John Roberts put the problem this way six years ago: “Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law -- even when it is unpopular to do so -- will be seriously eroded.”

Paying Bills

Once upon a time, resignations from the federal bench were scandalous. In 1961, a federal judge who had recently dismissed a price-fixing complaint against several oil companies stepped down to become general counsel to an oil company, an act that occasioned thunderous denunciations from politicians and the press. Today’s departures, by contrast, raise no serious ethical concerns. Most judges who depart for financial reasons simply have bills to pay -- kids in college, a mortgage -- the same challenges as the rest of us. Judges typically are appointed to the federal bench in their 50s or late 40s, the top earning years for professionals. We invite them to sacrifice in order to serve the nation.

We ask the same sacrifice of others, of course. The difference is that when other federal employees leave to seek additional income, it doesn’t necessarily threaten the constitutional system. When judges do it, the independence of the third branch totters. This may not be the best time to urge that the federal government spend more money. If we do not, however, the courts will eventually face a crisis of legitimacy.

Last year, the U.S. Court of Appeals for the Federal Circuit ruled that judges are entitled to at least part of the cost-of-living increases Congress has denied them. Last month, the Obama administration asked the Supreme Court to review that ruling. Let’s hope the justices decline.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and the novel “The Impeachment of Abraham Lincoln.” The opinions expressed are his own.)

To contact the writer of this article: Stephen L. Carter at stephen.carter@yale.edu or @StepCarter on Twitter.

To contact the editor responsible for this article: Michael Newman at mnewman43@bloomberg.net.

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