Pay scales of justice

Ayear after warning that underpaid federal judges threatened a “constitutional crisis,” Chief Justice John G. Roberts Jr. apparently has decided that less is more when arguing for higher judicial salaries. In his third New Year’s Day “state of the judiciary” message, Roberts reined in the alarmist rhetoric and relegated the issue to third place, after a discussion of the influence of U.S. courts on foreign judicial systems and the need for better discipline of judges who violate ethical standards.

The soft sell may reflect the criticism -- and ridicule -- that greeted Roberts’ last message. Not content to point out that increases in judges’ pay hadn’t kept up with those of either private lawyers or the typical American worker, Roberts had linked judicial compensation to the premature retirement or resignation of judges and the fact that fewer federal judges were coming from the ranks of private lawyers. The distinguished U.S. Court of Appeals Judge Richard Posner countered that a lawyer “who doesn’t want to exchange a $1-million income for a $175,000 income is unlikely to exchange it for a $225,000 income.” The Congressional Research Service, in a statistical analysis provided to Congress, cast doubt on the correlation Roberts drew between stagnant salaries and resignations, and concluded that the trend of more federal judges coming from the public sector predates recent complaints about judicial salaries.

Then again, the hard sell may no longer be necessary. Congress has warmed to the idea -- endorsed by the Bush administration -- that judicial pay has not kept up with inflation or increases for comparable positions inside and outside government. Last month, the House Judiciary Committee approved the Federal Judicial Salary Restoration Act of 2007, which would raise the annual pay of federal district judges from $165,200 to $218,000, and that of appeals court judges from $175,100 to $231,000. The bill would end the practice in which judges receive the same salary as members of Congress, a decoupling that brought complaints from Rep. F. James Sensenbrenner Jr. (R-Wis.) that “if you serve in one coequal branch of the government, you will be paid significantly more than those serving in the other coequal branches.”

Sensenbrenner misses the point: Unlike members of Congress, who are elected to fixed terms and often return to the private sector, federal judges are appointed for life. A bigger problem with pay parity is that members of Congress often find it politically advantageous to reject proposed cost-of-living increases for themselves. That act of self-sacrifice -- or pandering -- shouldn’t cause collateral damage to the federal judiciary.

In addition to approving “catch-up raises,” Congress should formally repudiate this linkage and approve a system in which federal judges would receive regular and modest pay increases, perhaps pegged to the cost of living of the locations where they sit. Even that won’t go down well with Americans offended by the notion that anyone on the public payroll should be paid more than they are. But the alternative -- long stretches with no raises, punctuated by huge ones -- is even more politically poisonous.