Federal Judges Complain Pay Is Too Low, Seek Raises

They are not exactly complaining that they are falling below the poverty line with salaries that range from $68,000 to $80,000 a year, but federal judges do have their gripes about pay these days.

Ralph Kelley, the former mayor of Chattanooga, Tenn., and now a $68,400-a-year bankruptcy court judge in Chattanooga, has dropped out of the fancy clubs he belonged to when he had a generous city expense account. He has also sold his boat and drives a ’73 Chevy. His wife has a job, but Kelley said that with three children in college, “maybe she needs two jobs.”

Samuel Sterrett, chief judge of the federal tax court in Washington, said some think his $76,000 salary is a lot of money, but “compared to what? I could earn three to four times that” in private practice. Serving up a baseball analogy, the judge said that when you are a talented jurist, “you liken yourself to a .300 hitter, not a .200 hitter.”

Federal judges and their supporters across the country increasingly argue that if their pay is not raised, the bench will attract mostly the rich, the old and--worst of all--the less than best.

Who else, they ask, could tolerate trying to live on $75-a-day travel expense money--including hotel room--in cities like New York, Chicago and Los Angeles?

What judges view as their underpayment is particularly glaring, they say, in a climate of increasingly complicated litigation, cases in which lawyers before them earn much more than the judges’ own salaries. The situation “makes us feel like chumps,” Sterrett said.

History shows that salary complaints from federal judges are nothing new. After the War of 1812, Supreme Court Justice Joseph Story threatened to resign because of low pay, then lobbied Congress for an increase. In 1857, Associate Justice Benjamin Curtis carried out a similar threat and went on to earn six times his Supreme Court salary in private practice.

Today, however, the complaints have become unusually candid and public by contemporary standards. And they are being made as the Commission on Executive, Legislative and Judicial Salaries, a body created to review the compensation of senior federal officials on a quadrennial basis, prepares to recommend changes in the way the government determines pay raises for top federal executives, congressmen and the 1,742 federal judges and magistrates.

Commission Chairman Nicholas Brady appears to sympathize with the jurists, asserting that in the absence of higher pay, “we’re veering toward a situation where only those with independent wealth or those with no family obligations can take the job. That’s the scary part.”

Brady’s view is not shared by all. Some argue that judges have perquisites, prestige and power that make their careers satisfying beyond what dollars can buy. Moreover, many argue, judges are public servants, and they knew what the pay would be when they took the jobs.

For example, David Keating, executive vice president of the National Taxpayers Union, said that any pay raise should be tied to reforming the judges’ liberal pension system, which allows many to draw their full salaries after retiring--a system he calls “unconscionable.” Judges “should face the same uncertainties (in retirement) as the rest of us,” he contended.

But lined up with the judges are an assortment of prominent lawyers, many of whom zestfully advocated raises for the judges at a commission hearing earlier this year.

The nation’s top judge, Chief Justice Warren E. Burger, who earns $104,700 a year, wrote the commission a two-page letter, calling the situation “serious and nearing a crisis.”

Burger said that since he assumed office in 1969, judges’ pay has declined one-third when inflation is taken into account, and 43 federal judges have resigned, many for financial reasons.

“The consequences of continuing on the present course could undermine the federal judiciary for a generation,” Burger wrote, noting that Justice Department officials have complained that it is increasingly difficult to find “the highest quality candidates, who must be willing to sacrifice as much as hundreds of thousands of dollars annually to serve their country.”

In 1983, the average salary for lawyers throughout the country was $33,800 a year. But a 1982 survey found that partners in large law firms were earning an average of $240,000 a year. Prominent individuals, of course, can earn much more. For example, former Republican Sen. Howard H. Baker Jr. went into private practice here this year at a reported $700,000 for his efforts in Washington--with another $300,000 coming from his practice back home in Tennessee.

The judges’ quest for higher pay is complicated by the fact that Congress controls whether the raises are made--after the quadrennial commission recommends them to the President, who in turn makes recommendations to Congress. In 1981, the commission recommended a 56% increase. Congress approved none. And now, the national budget deficit looms as the judges’ enemy.

In a departure from tradition, this year’s commission is not expected to recommend salary increases initially, concentrating instead on changing the mechanism for setting the salaries. The commission wants the President to have more control over the process.

Stephen Hitchner, vice president of the citizens lobbying group Common Cause, said it is necessary to “close the gap” on judges pay but added: “We feel that in view of the deficit situation, a salary increase this year would be politically untimely and almost certain to meet with public resistance.”

The judges’ current effort is not the first time they have asserted themselves on the issue of pay. Incensed by a congressional legislative maneuver that deprived them of salary increases for 1976 and 1979, judges filed suit, and the Supreme Court restored the raises on the grounds that they were denied unconstitutionally.

Today, the judges’ arguments are less about the Constitution and more about economics and the future of the nation’s legal system. As Judge Kelley of Chattanooga warned: “In life, you’d better be careful, or you’ll get what you pay for.”

Several judges agreed that the “triggering point” for their complaints about pay was the point at which high college tuition bills pour in. They said it was at this time that they began to question whether the years spent on the bench had been the right thing to do. And, they say, the lifetime appointments applicable to about 1,000 judgeships cut two ways: They offer security, but they also tend to lock out hopes of future, more lucrative work.

Thomas Masterson got out. Now a Philadelphia lawyer, he says he was earning $40,000 a year as a federal judge, had five children and concluded in 1973 that “there was no way” he could send them to good schools. He earns a “significant multiple” of his judge’s salary, he says.

At the same time, Masterson conceded, his “greatest professional satisfaction” came from the bench.

As Kelley put it: “Serving the public, resolving disputes--it’s very rewarding. But not monetarily.”

George Kazen, a District Court judge in Laredo, Tex., is 45 years old, with two children in college. Despite his $76,000 salary, he says he is borrowing money and feels “at a dead-end financially.”

“Honest to God, I truly enjoy the job,” he said, but “I take it day by day. If I can hang in, I’ll try.”