Judges merit a raise

Before becoming a judge, Chief Justice John G. Roberts Jr. was known as one of the most persuasive advocates in Washington, winning 25 of the 39 cases he argued before the Supreme Court he now leads. But in pleading for a cost-of-living pay increase for federal judges, Roberts is facing a tougher court, that of public opinion.

At a time of layoffs, bankruptcies and mortgage foreclosures, many Americans and their representatives in Congress resent, to put it mildly, the suggestion that federal judges can’t get by on salaries ranging from $169,300 (for district judges) to $217,400 (for Roberts). But Roberts is right: Judges have been denied automatic cost-of-living increases received by other federal officials and employees. This year, members of Congress will get a 2.8% COLA, but not members of the supposedly coequal judicial branch. That’s wrong as a matter of fairness. It also discourages some lawyers Roberts has called “the best of the best” from considering judicial service.

Those considerations won’t sway public opinion. Nor will Roberts’ imaginative suggestion in his annual report on the federal judiciary that hard economic times actually bolster the argument for higher judicial pay because the “finest legal minds” are needed to adjudicate cases involving business failures, home foreclosures and bankruptcy. Nice try, Mr. Chief Justice. But even in good times, calls for higher judicial pay provoke outrage and the objection that plenty of lawyers would work for the existing salary -- or less.

As with the recent financial rescue plan, Congress must be prepared on this issue to do the right thing, even if it’s unpopular. That means, at the least, the repeal of a legal provision that requires congressional approval for cost-of-living increases for judges. In the longer term, we have argued that salary levels for judges be decoupled from those for the legislative branch.

Members of Congress frequently are tempted to forgo even modest pay increases, confident that such self-denial will pay political dividends at the ballot box. But federal judges aren’t elected, and -- unlike members of Congress -- they are guaranteed by the Constitution compensation “which shall not be diminished during their continuance in office.” Denying judges cost-of-living increases isn’t literally a reduction in their pay, but it violates the principle that the purchasing power of judges shouldn’t be held hostage to the whims of Congress.

No one is suggesting that federal judges should be paid what they could earn at a prestigious law firm. And judicial office does confer lifetime job security. But judges, like other federal employees, are entitled to modest pay increases to reflect inflation -- even in bad times.