Judicial Salary: Current Issues and Options for Congress

Congressional research reportSep 16, 2008

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Prepared for Members and Committees of Congress

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Several federal judges, including the Chief Justice of the United States, have expressed concern

over the level of judicial salary. Chief Justice Roberts has called the current levels of judicial

salary a “constitutional crisis” that threatens the independence of the federal courts. The most

common arguments for raising judicial salary claim that low judicial salaries (1) limit the ability

of the federal judiciary to draw on a diverse pool of candidates for positions on the federal bench;

(2) force federal judges concerned about their financial futures to resign from the bench before

they become eligible for retirement; and (3) drive other federal judges, upon becoming eligible

for retirement, to retire completely (to earn extra income outside the judiciary), rather than remain

to assist the courts as judges on “senior status.” Opponents of raising judicial salary generally

question whether variations in judicial salary affect recruitment and retention of federal judges.

Examination of the available evidence on the effect of judicial salary on judicial recruitment and

retention suggests (1) trends away from appointing judges directly from private practice and

toward appointing federal judges who are already in the judiciary (as state judges or federal

bankruptcy or magistrate judges) date to before the most recent decline in judicial salaries, (2)

federal judges are not resigning from the federal bench at rates much higher than historical

averages, and (3) the percentage of federal judges who chose retirement in lieu of senior status

has also not risen markedly in the last several years. From an examination of data on judicial

departures, we are unable to identify a conclusive relationship between judicial salary and federal

judges’ decisions to resign or retire.

Should Congress wish to address the issue of judicial salary, it has several options. In addition to

increasing the pay of federal judges on a one-time basis by a specific amount or percentage,

Congress might consider “de-linking” congressional and judicial salaries, providing that judges

receive salaries based on their cost of living, revising retirement benefits, adjusting survivor

benefits for the spouses and dependents of federal judges, altering outside income limits,

convening the Citizens’ Commission on Public Service and Compensation, or enacting automatic

adjustments for judicial salary.

Four bills concerning judicial salary have been introduced in the 110th Congress: S. 197 would

adjust the salaries of federal judges upward by 1.7%; S. 2353 would increase the salaries of

federal judges by 16.5%; and S. 1638, as reported by the Senate Judiciary Committee, and H.R.

3753, as ordered reported by the House Judiciary Committee, would increase the salaries of most

federal judges by 28.7%, permit cost-of-living adjustments to judicial salaries to go into effect

unless Congress passed legislation stopping them from doing so, change the eligibility for federal

judges to retire, and change how the annuity they receive upon retirement is calculated. S. 1638

also imposes limits on reimbursable travel and honorary memberships for judges, as well as

applying limits on outside earned income to U.S. Supreme Court justices. This report will be

updated as events warrant.

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Introduction ..................................................................................................................................... 1

Arguments For and Against Raising Judicial Salary ....................................................................... 2

Effect of Judicial Salary on Recruitment and Retention of Federal Judges: An

Examination of the Relevant Data................................................................................................ 4

Inability to Recruit Qualified Candidates.................................................................................. 5

Early Departures of Federal Judges .......................................................................................... 8

Recent History of Retirement Options for Federal Judges ................................................. 8

Current Options to Terminate Active Service ..................................................................... 9

Federal Judges Who Resign...............................................................................................11

Federal Judges Who Retire Rather Than Take Senior Status............................................ 12

Evaluating the Data ................................................................................................................. 14

Strength of Correlations .................................................................................................... 14

Possible Intervening Variables .......................................................................................... 15

Judicial Salary Relative to Other Salaries......................................................................... 16

Magnitude of Effects......................................................................................................... 16

Patterns in Judicial Salary ............................................................................................................. 17

Determining a Proper Time Interval for Evaluating Changes in Judicial Salary ................... 17

Nominal and Real Judicial Salaries, 1955-2006 ..................................................................... 18

Options for Congress..................................................................................................................... 19

Raising Judicial Salary............................................................................................................ 20

Appropriate Comparisons for Judicial Salary................................................................... 20

“De-linking” Congressional and Judicial Salaries .................................................................. 23

Effect of Pay Parity on Judicial Salaries ........................................................................... 24

Effect of Pay Parity on Congressional Salaries................................................................. 25

Arguments For and Against Pay Parity............................................................................. 25

Locality Pay ............................................................................................................................ 26

Revising Retirement Benefits.................................................................................................. 28

Survivor Benefits .................................................................................................................... 29

Outside Income Limits............................................................................................................ 30

Citizens’ Commission on Public Service and Compensation.................................................. 31

Automatic Adjustments for Judicial Salary............................................................................. 32

Legislation in the 110th Congress .................................................................................................. 33

Figure 1. U.S. District Court Judges, 1933-2006: Percent Whose Immediate Prior

Positions Were in Private Practice, in the Judiciary, or in Public Service (Including the

Judiciary)...................................................................................................................................... 7

Figure 2. Percentage of Federal Judges Who Left Active Service by Resigning, and Real

Salary of District Court Judges, 1985-2007 ................................................................................11

Figure 3. Percentage of Federal Judges Who Retired Rather than Take Senior Status, and

Real Salary of District Court Judges, 1985-2007....................................................................... 13

Figure 4. Real Salaries of U.S. District Court Judges, 1955-2006 ................................................ 19

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Table 1. Comparison of Active Status to Resignation, Senior Status, and Retirement for

Federal Judges ............................................................................................................................ 10

Table 2. Change in Salaries of U.S. District Court Judges and Selected Other Professions,

1969-2006................................................................................................................................... 22

Table 3. Side-By-Side Comparison of Current Federal Judicial Salaries and Proposed

Salaries Under S. 1638, S. 2353, and H.R. 3753 (110th Congress) ............................................ 33

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Appendix A. Number of Judgeships, Vacancies, Active Judges, Departures from Active

Service, and Method of Departure for Article III U.S. District Courts, Court of

International Trade, and U.S. Courts of Appeals, 1985-2007 .................................................... 35

Appendix B. Nominal and Real Salaries for U.S. District Court and Court of Appeals

Judges, 1955-2006...................................................................................................................... 37

Author Contact Information .......................................................................................................... 40

Acknowledgments ......................................................................................................................... 40

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Federal judges have repeatedly expressed concern about what they view as a continuing decline

in their “real salary” level.1 Chief Justice Roberts has characterized the current judicial pay rate as

a “constitutional crisis,”2 particularly noting that judicial salaries remain steady or decrease as the

real salaries of lawyers, law professors, and wage earners continue to increase. The salary for

district court judges is currently $169,300; the salary for court of appeals judges is currently

$179,500.3 In 2006 dollars, the median salary for district court judges between 1955 and 2006

was $167,047; the median salary for court of appeals judges over the same time period was

$178,139. While the judges’ current salary is only slightly below the 1955-2006 median, the

salary level has steadily decreased since 1991, when the real salary of district judges was

$185,170 and of court of appeals judges was $196,419.

Out of evident concern about the erosion of salary levels for federal judges in recent years, four

bills pending in the 110th Congress would increase those levels. While one bill (S. 197) would

provide for a nominal 1.7% salary adjustment, the other three—S. 2353, H.R. 3753, and S.

1638—would provide for much more substantial increases, of 16.5%, 28.7%, and 28.7%

respectively (for specific values, see Table 3, below). H.R. 3753 and S. 1638 would also grant

federal judges annual cost-of-living adjustments (COLAs) equal to the increase in base pay for

General Schedule (GS) salaries unless Congress acted to block the increase from taking effect. In

addition, H.R. 3753 and S. 1638 would, while retaining the “Rule of 80” for senior status

qualification, create a “Rule of 84” for retirement, where years of service and age must add to 84

(starting at 67 years old and 17 years of service). H.R. 3753 and S. 1638 would reduce the amount

of annuity retired federal judges receive if they have earned income that exceeds the value of their

annuity; for every $2 in annual earned income above the level of the annuity, a federal judge’s

annuity would be reduced by $1, but no reduction to an annuity could be greater than 67%. H.R.

3753 and S. 1638 require that judges in senior status perform, each year, the equivalent work of

an active judge on their district or circuit performs in four months. S. 1638 also includes a

provision that restricts the reimbursable seminar-related travel for federal judges to $2,000 per

trip and $20,000 per year, with exceptions for events approved by the State Department and those

sponsored by the federal government, state governments (not including public educational

institutions), bar associations, and the National Judicial College. S. 1638 also outlaws the

Throughout this report, a distinction is made between “real” and “nominal” values of salary. “Real” values use the

Consumer Price Index (CPI) to account for changes in cost of living due to inflation and allow salaries from different

time periods to be compared with one another. Though the CPI includes components which vary across regions of the

country (e.g., housing, food, and gasoline), the CPI represents a national average for urban consumers and may better

reflect the true cost of living in some regions of the country than in others. “Nominal” values are the actual amounts

paid to federal judges and other workers at a given time and cannot be compared over time. This report uses 2006

dollars as its baseline because that is the year for which the most recent comparison data to other professions is

available.

John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The Third Branch, January 2007, p. 1.

The focus of this report is the salaries for U.S. district court judges and, to a lesser extent, U.S. court of appeals

judges. Salaries of the Justices of the Supreme Court traditionally rise with the salaries of other judges. Associate

Justices of the Supreme Court currently receive an annual salary of $208,100; the Chief Justice receives an annual

salary of $217,400. Since 1987, the Judicial Conference has determined the salaries of magistrate judges (normally

92% of the salaries of district court judges). By statute, the salaries of full-time bankruptcy judges are equal to 92% of

the salaries of district court judges. See 28 U.S.C. § 153 (a). Salaries of the judges of the Court of International Trade

have been equal to those of district court judges since the court was established in 1980. Salaries of judges of the Court

of Federal Claims have been equal to the salaries of district court judges since 1987. See http://www.fjc.gov/history/

home.nsf/page/salaries_bdy for historical salary data.

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acceptance of honorary memberships valued at more than $50 per year and applies the regulations

of the Judicial Conference on outside earned income to justices of the U.S. Supreme Court.4

This report

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reviews the most common arguments that have been advanced in recent years for

and against raising federal judicial salaries;

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examines a large body of data relevant to the question of whether fluctuations in

judicial pay levels have affected the federal judiciary’s ability to recruit and

retain judges;

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considers various time periods (between 1955 and 2006)5 over which the rise and

fall of judicial salaries may be examined, taking into account, as well, changes

that have occurred at various points in time in non-salary compensation that

federal judges receive;

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identifies and analyzes options available to Congress in addressing the judicial

pay issue in addition to increasing judicial salaries by a specific amount or

percentage on a one-time basis—including “de-linking” congressional and

judicial salaries, providing judges with salaries based on their cost of living,

revising retirement benefits, and altering outside income limits; and

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provides a side-by-side comparison of the three bills noted above that would

provide for a substantial judicial pay increase, showing how the levels provided

for would compare with those of the benchmark year of 1969 (the year of highest

real salaries for federal judges since at least 1913).

Should Congress choose to act, it can increase but not decrease judicial salaries. The Constitution

prohibits Congress from diminishing the salaries of Article III federal judges.6

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The degree to which federal judges’ pay has changed depends on how it is measured. While real

judicial salary for district court judges declined 21.5% between 1969 and 2006, such a calculation

does not take into account real income growth for other classes of wage earners. According to

Paul Volcker, chairman of the National Commission on Public Service, the real compensation of

the average wage earner has grown 18.5% since 1991, and the real salaries of federal workers

more generally have grown 15.1%.7 The real growth of salaries for individuals whom federal

judges regard as their professional peers, particularly partners in law firms and law professors,

For more details on the nature of these restrictions see, below, “Outside Earned Income.”

See “Recent History of Retirement Options for Federal Judges,” below, for a discussion of the use of 1955 as a

starting point for salary comparisons.

Article III, Section 1 of the U.S. Constitution reads, “The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges,

both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times,

receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Paul A. Volcker, “Judgment Pay,” Wall Street Journal, February 10, 2007, p. A9.

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may have been even greater.8 Using those benchmarks, the 2003 Volcker Commission study

reported a more notable decline in real judicial salary:

Judicial salaries are the most egregious example of the failure of federal compensation

policies. Federal judicial salaries have lost 24 percent of their purchasing power since 1969,

which is arguably inconsistent with the Constitutional provision that judicial salaries may not

be reduced by Congress...The lag in judicial salaries has gone on too long and the potential

for diminished quality in American jurisprudence is now too large.9

Several professional organizations have expressed concerns similar to those made by Chief

Justice Roberts and other current and former members of the federal judiciary. The American Bar

Association, the National Bar Association, several state and local bar associations, the U.S.

Chamber Institute for Legal Reform, several law school deans, and the American Judicature

Society, among other organizations, have expressed support for increasing the salaries of federal

judges.10 In addition, the current administration of President George W. Bush has expressed

support for raising federal judges’ salaries.11 On balance, the majority of expressed opinions on

the topic of judicial salary appear to favor some form of increase in the pay of federal judges,

though the specific amount of the pay and future prospects for judicial compensation may divide

judges, policymakers, and professional organizations.

The consequences of such a decline in judicial salary are alleged to be the creation of problems of

recruitment and retention in the federal judiciary. Abner Mikva, who served in Congress, as a

court of appeals judge, and as White House counsel, has argued that low judicial pay has several

consequences for the judiciary:

It is true that more judges, faced with the alternatives of senior status or outright retirement,

are choosing the more lucrative path of retirement. But they have served their time, and a

vacancy occurs whether or not the judge retires or takes senior status. I chose retirement

rather than senior status so that I could become White House counsel. While I received no

pay in that job, I have had the opportunity to earn substantial income since I left the White

House and became a neutral with JAMS, a dispute-resolution firm. The public obviously

benefits from the ongoing service of a senior judge, but it is not a flaw in the system that

allows judges to have the option to make up for some lost earning opportunities after

retirement.

The real problem of inadequate judicial pay is the limits it puts on attracting judges to the

bench in the first place. I saw these limits both as White House counsel for President Clinton,

when I was very much involved in finding candidates to fill judicial vacancies, and as a

member of various selection panels since I returned to the private sector. Lawyers most

appropriate for consideration as judges are at the height of their earning power in the private

sector. At one time law schools were a good place to look, but even those salaries have

advanced beyond the judicial levels now in existence. To ask a lawyer to go on the bench

“Need for Federal Judicial Pay Increase Fact Sheet.” Available at http://www.uscourts.gov/judicialcompensation/

payfactsheet.html.

National Commission on Public Service (Volcker Commission), Urgent Business for America: Revitalizing the

Federal Government for the 21st Century, January 2003, pp. 22-23.

See, generally, http://www.uscourts.gov/judicialcompensation/support.html. See also Karen J. Mathis, president,

American Bar Association, “Judicial Pay Crucial to Our Courts’ Future.” January 5, 2007. Available at

http://www.abanet.org/abanet/media/oped/oped.cfm?releaseid=60.

Letter from Rob Portman, director, Office of Management and Budget, to Rep. John Conyers, chair, House Judiciary

Committee, April 19, 2007. Available at http://www.uscourts.gov/judicialcompensation/OMBletter.pdf.

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from the private sector is usually to ask that person to take a drastic reduction in earnings, as

well as the other problems of living in a public fishbowl.12

Those who argue against raising judicial salary tend to make four arguments. First, they note that

the salaries of federal judges are high relative to all workers in the United States. The 2006 salary

of federal district court judges ($165,200) would put judges somewhere between the 90th and 95th

percentile among all American households, assuming no other members of the household had

income as defined by the Census Bureau. Court of appeals judges (2006 salary of $175,100) and

Supreme Court justices (2006 salary of $203,000 for associate justices and $212,100 for the Chief

Justice) would be above the 95th percentile in household income.13 Second, opponents argue that

federal judges and the “perks” of being a federal judge (prestige, job security, opportunity to

select and work with law clerks, interesting work, retirement package that offers full salary upon

qualification) more than compensate for any shortcomings in judicial salary.14 Third, some have

argued that raising judicial salaries may not solve some of the problems thought to be associated

with low and declining judicial salary. As Judge Richard Posner, a judge on the Seventh Circuit

Court of Appeals who has written extensively on judicial salary, argues:

Raising salaries would not do a great deal to attract commercial lawyers to judgeships. The

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—[Chief Justice] Roberts doesn’t name a figure to

which he thinks judicial salaries should be raised, but he can hardly expect Congress to raise

salaries by more than 30 percent, and that only intermittently, so that inflation will eat away

at the salary until the next jump.15

Fourth, they contend that many of the consequences one might expect from declining salaries,

including problems recruiting and retaining federal judges, have not manifested themselves in the

degree to which advocates for judicial salary contend.16

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The difference of opinion on the necessity of a raise in judicial salary stems, in part, from

disagreement on some of the consequences of what might be considered a low judicial salary. In

particular, those who advocate and oppose increasing judicial salary disagree over the extent to

which declines in judicial salary:

Abner Mikva, “Attracting the Best,” National Law Journal, June 4, 2007.

For 2006, the household income for the 90th percentile of American households was $133,000; the household income

for the 95th percentile was $174,012. See U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the

United States: 2006, August 2007, p. 41. See Ibid., p. 27, for a definition of income.

See, e.g., James C. Harrington, “No Need To Boost Salaries,” The National Law Journal, January 16, 2006, p. 26.

(Hereafter, cited as Harrington, “No Need To Boost Salaries.”) See also Richard Posner, “Judicial Salaries,” The

Becker-Posner Blog, March 18, 2007. Available at http://www.becker-posner-blog.com/archives/2007/03/

judicial_salari.html. (Hereafter, cited as Posner, “Judicial Salaries.”)

Posner, “Judicial Salaries.”

Harrington, “No Need To Boost Salaries.” See also Posner, “Judicial Salaries.”

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make it more difficult to recruit federal judges from private practice, depriving

the federal judiciary of talented candidates;

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lead more federal judges, before becoming eligible for retirement, to leave the

bench to work in private practice, increasing turnover in the federal judiciary;

and

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lead more judges, after becoming eligible for retirement to leave the judiciary

(often for jobs in the private sector or elsewhere), rather than remaining in the

judiciary in semi-retired “senior status,” depriving the federal judiciary of

important resources of manpower and expertise.

To date, little systematic evidence has been collected which would allow Congress to evaluate the

degree to which the current patterns of recruitment and retention on the federal judiciary deviate

from historical patterns and the degree to which those deviations (if they do exist) can be

attributed to fluctuations in judicial salary. This report collects and analyzes evidence that can be

used to evaluate how increases and decreases in judicial pay have affected the federal judiciary’s

ability to draw on a diverse set of professional backgrounds and deter federal judges from leaving

their positions early to earn more money.

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Those who seek higher federal judicial salaries, including several current and former federal

judges, contend that relatively low judicial salaries deprive the federal judiciary of the ability to

recruit lawyers from private practice. As a result, federal judges are increasingly drawn from

other ranks of the judiciary and government service rather than from private practice. The Ad Hoc

Group on Federal Judicial Salaries, for example, has argued that the declining earning power of

federal judges raises the prospect of “an alteration of the federal bench from one drawn from all

elements of the legal profession to one populated only by the independently wealthy and those for

whom a federal judicial appointment represents a salary enhancement.”17

Justice Stephen Breyer, in prepared remarks he delivered in April 2007 to the Subcommittee on

the Courts, the Internet, and Intellectual Property of the House Judiciary Committee, outlined

what he viewed as the consequences of such a shift:

A federal district court is a community institution. The federal judiciary will best serve that

community when its members come from all parts of the profession, large firms, small firms,

firms of different kinds of practice, all varieties of government practice, other courts, and

academia. That diversity, important as it is to the institution, is gradually disappearing.18

Given the importance of the background of federal judges, an analysis of the data cited by Justice

Breyer may illuminate the degree to which the trends they cite appear in the federal judiciary. The

Letter from John C. Danforth and Leon C. Panetta to Sen. Patrick Leahy, chair, Senate Judiciary Committee, and

Sen. Arlen Specter, ranking member, Senate Judiciary Committee, May 7, 2007. The Ad Hoc Group on Federal

Judicial Salaries listed as its members former Members of Congress Howard H. Baker Jr., John C. Danforth, Richard

A. Gephardt, Henry J. Hyde, Susan Molinari, Sam Nunn, Leon E. Panetta, and Louis Stokes.

Testimony of Justice Stephen Breyer, U.S. Congress, House, Committee on the Judiciary, Subcommittee on Courts,

the Internet, and Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess.,

April 19, 2007 (not yet printed). Available at http://www.uscourts.gov/testimony/JusticeBreyerPay041907.pdf, pp. 6-7.

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data cited by both Chief Justice Roberts and Justice Breyer appear in Figure 1.19 The indicator

used in Figure 1, and by Justice Breyer, is the occupations federal district court judges held

immediately prior to their appointments to the federal bench.

Though the proportion of judges coming to the federal bench from private practice has declined

since the Eisenhower Administration, current levels are roughly equal to those of the presidential

administrations of Franklin D. Roosevelt and Harry S Truman. The appointment practices of

Dwight D. Eisenhower’s administration were exceptional in the extent to which district court

judges were drawn from private practice; the Eisenhower Administration appointed 65.1% of its

federal judges from private practice, while no other administration since 1933 has appointed more

than 55% of its federal judges from the same population. Four Presidents since 1933—Franklin

D. Roosevelt, Harry S Truman, William J. Clinton, and George W. Bush—have appointed fewer

than 40% of federal district judges directly from private practice.

Since 1933, the percentage of federal judges whose immediate prior position was another

judgeship, either at the state or federal level, has increased. The percentage of district court judges

appointed by President George W. Bush who were already judges—46.8%—is 2.5 times greater

than the percentage of district court judges appointed by President Franklin D. Roosevelt who

were already judges (18.6%). Since 1933, only Presidents Ronald Reagan and George W. Bush

have appointed a smaller percentage of district court judges from the judiciary than their

immediate predecessors.

The data presented in Figure 1 do not illustrate a relationship between judicial salary and the

immediate prior positions of federal district court judges. While the percentage of federal judges

whose immediate previous position was another judgeship has increased, on a fairly consistent

basis, since 1933, the real salaries of federal judges have risen and fallen several times over that

same time interval. The experiences of two presidential periods (Reagan and Nixon/Ford)

highlight the difficulties of comparing salary and immediate prior occupation of federal district

court appointees:

John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The Third Branch, January 2007, p. 3.

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. U.S. District Court Judges, 1933-2006: Percent Whose Immediate Prior

Positions Were in Private Practice, in the Judiciary, or in Public Service (Including

the Judiciary)

Figure 1

Percent of Appointees With Immediate Prior Position

65.1

60.9

59.7

55.7

54.1

59.1

52.7

50.3

48.2

46.8

44.2

39.2

38.3

37.7

36.9

37.4

34.9

31.4

18.6

29.9

21.4

20.3

lin

Appointing President

Judiciary Only

Private Practice

All Forms of Public Service

Data for six most recent Presidents are found in Sheldon Goldman, Elliot Slotnick, Gerard Gryski, and

Sara Schiavoni, “Picking Judges in a Time of Turmoil: George W. Bush’s Judiciary During the 109th Congress,”

, vol. 90, no. 6 (May-June 2007), p. 277. For earlier presidencies, Sheldon Goldman, Picking Federal

Judges: Lower Court Selection from Roosevelt through Reagan (New Haven: Yale University Press, 1997), pp. 58-59

(Roosevelt), pp. 104-105 (Truman), pp. 147-149 (Eisenhower), pp. 190-191 (Kennedy/Johnson), pp. 227-229

(Nixon/Ford). Some data labels deleted for clarity. Data are current through the end of the 109th Congress.

Source:

Judicature

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Reagan Administration (1981-1988): Throughout this period, real salaries for

federal judges were below the 1955-2006 median. This time period also saw a

decline in the number of federal district judges appointed whose immediate prior

position was another judgeship. The data for this period are inconsistent with the

argument that lower judicial salaries translate into more federal judges whose

immediate prior position was another judgeship.

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Nixon/Ford Administrations (1969-1976): For all but one year of this period, real

salaries for federal judges were above the 1955-2006 median, while the

percentage of appointed federal judges who were from private practice (51.4%)

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was the second-highest of all administrations within the 1933-2006 time frame.20

These data are consistent with the argument that lower judicial salaries translate

into more federal judges whose immediate prior position was another judgeship.

These examples suggest that any conclusions about the decrease in real salary causing changes in

the composition of professions leading to federal judgeships should be made with caution.

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Federal judges concerned about the adequacy of their salary might choose one of two methods to

make more money than they do as federal judges. First, they may simply resign as federal judges

and take positions that provide higher levels of compensation. Second, they may choose to retire,

taking an annuity equal to their salary upon retirement that will never increase, rather than taking

senior status, which entitles judges to continued cost-of-living adjustments if Congress authorizes

such adjustments for active judges. Advocates of higher judicial salary argue that federal judges

resign and retire at greater rates during periods of low judicial salary. In testimony before the

Subcommittee on Courts, the Internet, and Intellectual Property of the House Judiciary

Committee, Justice Samuel Alito noted the following:

Twenty Article III judges have resigned or retired from the federal bench since January 1,

2005. It is our understanding that seventeen of these judges sought other employment. Six of

these judges retired to join JAMS, a California-based arbitration/mediation [company],

where they have the potential to earn the equivalent of the district judge salary in a matter of

months. Five judges entered the private practice of law (presumably at much higher salaries).

Two judges resigned to become corporate in-house counsels. One judge resigned to accept a

state judicial appointment (at a higher salary). Another judge retired to accept an

appointment to a quasi-governmental position. One judge recently announced his resignation

to accept an appointment in higher education. One judge resigned to accept an appointment

in the executive branch of government.21

The degree to which these numbers represent trends or aberrations in the federal judiciary could

help illustrate how the decisions federal judges make about remaining in or leaving their positions

are affected by judicial salary. If there is a relationship between salary and early departure, then

one way to increase the stability of the judiciary would be to increase the salary of federal judges.

If, on the other hand, judicial salary and the method (and frequency) of departure from the federal

judiciary are unrelated, then increasing judicial salary may not alter the decisions of federal

judges to depart for other positions.

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Before evaluating the relationship between salary and patterns of departure from the federal

bench, a review of the options federal judges have for departure may prove useful. In the past 53

The source data for Figure 1 and the accompanying text, combine the administrations of Richard Nixon and Gerald

Ford, as well as those of John Kennedy and Lyndon Johnson.

Testimony of Justice Samuel Alito, U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts, the

Internet, and Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess., April

19, 2007 (not yet printed). Available at http://www.uscourts.gov/testimony/JusticeAlitopay041907.pdf, pp. 19-20. The

figures cited by Justice Alito include federal district court and court of appeals judges on senior status who chose to

retire, as well as federal judges in active service who chose to resign or retire.

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years, there have been two significant changes to the retirement system for federal judges, one in

1954 and one in 1984. Congress also made modest changes to senior status in 1989 and 1996.

In 1954, Congress enacted legislation allowing judges to take senior status if they had reached 70

years of age with 10 years of service as an Article III judge or 65 years of age with 15 years of

service. At the time, senior status allowed a federal judge to “retain his office but retire from

active service,”22 (thus receiving their salary) but did not specify how much work judges in senior

status must do to retain their offices. Judges could also “resign with salary” if they were 70 years

old and had served as Article III judges for at least 10 years.23 The 1954 legislation was the first

legislation that allowed judges younger than 70 to leave active service and receive their salaries

(though they could only take senior status and could not resign with salary until they were 70

years old and had served for 10 years);24 before that time, only judges 70 and older could choose

to depart while retaining their salary, and only then by taking senior status.25

In 1984, Congress enacted legislation that eliminated the two age and service thresholds for

senior status (70 years of age and 10 years of service, or 65 years of age and 15 years of service)

and replaced them with the Rule of 80, allowing any judge to take senior status who was at least

65 years of age and whose age and years of service add to at least 80. The 1984 legislation also

eliminated the option of judges “resigning with salary” but allowed judges to “retire” and

permitted judges to exercise this option if they met the criteria of the Rule of 80.26 Practically

speaking, resigning before 1984 and retiring after 1984 were the same: judges who choose this

option (i.e., retire) leave office but receive the salary they were receiving upon departure for the

rest of their lives.

In 1989, Congress allowed judges serving in senior status to receive the same adjustments to

salary that judges in active service received. In so doing, Congress outlined the criteria for

qualifying for senior status (and the pay adjustments). Each year, senior status judges must handle

the equivalent of 25% of the caseload of an active judge or serve the federal judiciary in an

administrative capacity.27 In 1996, Congress further amended the provisions of senior status to

allow judges to count work done in later years to fulfill the workload criteria for earlier years in

which they did not meet the 25% threshold and to count administrative work toward the 25%.28

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Under current law, federal judges may retire or take senior status when they are at least 65 years

of age and their age and years of service in Article III judgeships add to at least 80 (the Rule of

P.L. 294, 68 Stat. 12 (February 10, 1954).

Ibid.

Act of April 10, 1869, 16 Stat. 45 (April. 10, 1869).

P.L. 98-353, 98 Stat. 333 (July 10, 1984). Before 1984, resignation with salary was only available to judges who had

reached the age of 70 and had 10 years of service. The difference between resignation, resignation with salary, and

retirement is important when considering patterns of departure from the federal judiciary. Since 1984, judges who

resign have done so without any pension; those who retire receive an annuity equal to the salary they were receiving

when they retired.

P.L. 101-194, 103 Stat. 1716, 1770 (November 30, 1989).

P.L. 104-317, 110 Stat. 3847, 3851 (October 19, 1996).

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80).29 Federal judges who resign, rather than retire, are not eligible for judicial retirement. Unlike

pension plans where individuals may acquire some level of retirement income (partial vesting)

after a few years of employment, judicial retirement is all-or-nothing: federal judges who do not

meet the requirements of the Rule of 80 do not earn retirement benefits. A federal judge who is

appointed at 45 years of age and resigns at 60 will receive no annuity because both the age and

years of service requirements must be met to qualify for judicial retirement; for the same reason,

a federal judge appointed at 50 who resigns at 59 will also not receive judicial retirement.30

Federal judges may depart active status on their court in a variety of ways: they may resign, be

impeached and convicted, be elevated, resign, retire, take senior status, or die while in office.31 If

judicial salary is related to departure (that is, if judges are more likely to leave the bench when

salary levels are low), then one should expect to observe two phenomena when judicial salaries

decline: an increase in the number of judges who resign (and, so doing, forfeit judicial retirement)

and judges who opt to retire rather than take senior status upon qualifying under the Rule of 80.

Doing the latter (retiring rather than taking senior status) would allow a judge to earn income in a

position (in private practice or academia) while still drawing a judicial retirement annuity that

does not change as the salaries of active judges change. Table 1 summarizes the options federal

judges have to leave active service under current law, and the consequences of those choices, in

comparison with active service.

Table 1. Comparison of Active Status to Resignation, Senior Status, and Retirement

for Federal Judges

Status

Benefit

Active

Service

Resignation Senior

Status

Retirement

Lifetime Nondiminishing Compensation

Congress-approved Salary Increases

Exemption from Federal Taxes on

Compensation

Can Earn Unlimited Nonjudicial Income

Judicial Chambers, Clerks, Administrative

Support

Yes

Adapted from Albert Yoon, “As You Like It: Federal Judges and the Political Economy of Judicial

Tenure,” Journal of Empirical Legal Studies, vol. 2, no. 3 (November 2005), p. 511.

Source:

28 U.S.C. § 371.

Federal judges who take another position in the federal government, or served in the federal government before

becoming a federal judge, may be eligible to receive credit for time served in the federal judiciary under the Civil

Service Retirement System (CSRS) or Federal Employee Retirement System (FERS). Like other federal employees,

most federal judges whose employment with the federal government (not necessarily their date of employment as a

federal judge) began before January 1, 1984, would be enrolled in CSRS; those whose federal employment began on or

after January 1, 1984, would be enrolled in FERS. Federal employees whose service started before January 1, 1984

could choose to enroll in FERS. See Administrative Office of the U.S. Courts, Senior Status and Retirement for Article

III Judges, Judges Information Series No. 4, (Washington: Administrative Office of the U.S. Courts, April 1999). All

federal judges may participate in the Thrift Savings Program, contributing up to 5% of their salaries, but there is no

matching contribution made by the federal government.

Federal judges may also be assigned to another court if Congress reorganizes the district courts or circuit courts of

appeals. Such changes are not considered in this report to end a judge’s service.

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To evaluate the claim that departures of federal judges are related to salary, one might start by

distinguishing between judges who resign and those who retire. Judges who resign are not

eligible for judicial retirement, so they may make a significant monetary sacrifice by resigning

from the federal bench that they hope to offset by alternative employment. The years after 1984

provide a reasonable period for analysis of judicial departures due to the changes in judicial

retirement and resignation. “Resignations” before the enactment of the 1984 legislation could

come with salary if the judge met the age and years of service requirement; all resignations after

enactment of the 1984 legislation meant that the resigning judges would receive no judicial

retirement.

Figure 2 plots the percentage of lower court judges who departed their position by resignation

between 1985 and 2007 against the real salary of district court judges over the same time period.

Figure 2. Percentage of Federal Judges Who Left Active Service by Resigning, and

Real Salary of District Court Judges, 1985-2007

9.00

185000

7.87

8.00

180000

7.27

175000

6.40

170000

6.00

165000

5.06

5.00

160000

4.00

155000

Real Salary (Period Median)

Percent of Judges Departing By Resignation

7.00

3.00

2.58

150000

2.00

145000

1.00

0.79

140000

135000

0.00

1985-1988

1989-1992

1993-1996

1997-2000

2001-2004

2005-2007

Years

Source: CRS analysis of data provided by the Federal Judicial Center (FJC). Data used are presented in

Appendix B. The percentage of district court judges who resigned was calculated by dividing the number of

judges who resigned in a given period by the sum of the number of judges in the same period who resigned,

retired, took senior status, were impeached and convicted, or whose recess appointments expired without

Senate confirmation. Data are current through December 31, 2007.

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The solid line plots the median real salary for district court judges for each interval (the salaries of Court

of International Trade judges are the same as those of district court judges and the salaries of court of appeals

judges follow the same pattern as those of district court judges); the columns plot the percentage of Article III

district court judges who left active status by resigning in each period.

Note:

Since 1985, the percentage of judges who resign and forgo judicial retirement has fluctuated. In

the first 16 years after 1985, the percentage of judges who resigned declined in every four-year

period while real judicial salary increased in the first three of those same four-year periods.

Between 2001 and 2004, in contrast, when real judicial salary rose slightly over the 1997-2000

period, 6.4% of federal judges who left active status did so by resigning. In 2005 and 2006, 7.9%

of federal judges who left active status did so by resigning. Generally speaking, as salaries rose,

the percentage of judges who left office by resignation fell, but the 1997-2000 period, where no

federal district judges resigned though real salary fell, stands as an exception to the general trend.

ȱ ȱȱȱȱȱȱȱȱ

Federal judges who do not qualify to take judicial retirement, but who are concerned about their

compensation, make a decision to remain a member of the federal judiciary or resign and pursue

alternative employment. On the other hand, federal judges who meet the requirements for judicial

retirement (the Rule of 80) face a different choice; they may choose to retire (after which they

may or may not pursue additional employment) or take senior status, where they continue to hear

cases and perform administrative tasks for their courts. Both retired and senior judges receive an

annuity equal to the salary they were receiving when they left active status; only judges on senior

status, however, continue to receive cost-of-living adjustments and any other raises Congress

approves as long as they remain in senior status.

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Figure 3. Percentage of Federal Judges Who Retired Rather than Take Senior Status,

and Real Salary of District Court Judges, 1985-2007

6.00

185000

5.41

180000

5.00

4.95

4.80

170000

4.00

165000

3.42

3.31

3.00

160000

155000

Real Salary (Period Median)

Percent of Retirement-Eligible Judges Who Retire

175000

2.00

150000

1.22

145000

1.00

140000

135000

0.00

1985-1988

1989-1992

1993-1996

1997-2000

2001-2004

2005-2007

Years

Source: CRS analysis of data provided by the Federal Judicial Center (FJC). Data used are presented in

Appendix A. The percentage of federal judges who retired was calculated by dividing the number of judges who

retired from active service in a given period by the sum of the number of judges in the same period who retired

from active service or took senior status. Data are current through December 31, 2007.

Note: The solid line plots the median real salary for district court judges for each interval (the salaries of Court

of International Trade judges are the same as those of district court judges and the salaries of court of appeals

judges follow the same pattern as those of district court judges); the columns plot the percentage of Article III

district court judges who chose retirement over senior status in each period.

Figure 3 presents data on the percentage of federal district court judges who, between 1985 and

2006, opted for outright retirement rather than senior status. The data presented in Figure 3

demonstrate that, with the exception of the 1997-2000 time period, the percentage of district court

judges who retired rather than take senior status declined steadily, if not dramatically, since the

1989-1992 period. Over the 1985-2007 time period, the percentage of district judges who retired

rather than take senior status fell from 4.95% in the 1985-1988 time period to 1.22% in 20052007. Though the raw number of federal judges choosing retirement without first taking senior

status between 1985 and 2007 may not be large (29 judges, compared with 695 who took senior

status in that time frame), variations over time may still help explain the effect of judicial salary

on the departure decisions of federal judges. If declining judicial salary explains the choice judges

make between retirement and senior status, it might be argued that judges in the 2001-2004 and

2005-2007 periods should have retired at rates comparable to the 1997-2000 period, whereas the

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retirement rates for those two periods are actually lower than the 1997-2000 time period, and the

retirement rate for the 2005-2007 time period was the lowest of any time period since 1985.

ȱȱȱ

The data evaluated to this point note only the degree to which judicial salary is correlated with the

professional backgrounds of district judges and the departure via resignation or retirement of

federal judges. Establishing correlation is a necessary, but not a sufficient, condition to establish

causation. This section evaluates, first, the strength of the correlations established by the data and,

second, considers what intervening variables might influence the relationship between judicial

salary and the kind of candidates recruited to become federal judges and how federal judges

depart the bench. Any conclusions made about causation from correlations should be made with

these considerations in mind.

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The data presented here suggest that there are, at best, weak correlations between judicial salary

levels and the pool of candidates from which judges are drawn. While the federal judiciary

consists of a different mix of individuals than it did 50 or 70 years ago, concluding that these

trends are caused by lower judicial salary raises several concerns. Changes in the immediate prior

position of district court judges appear to arise independent of fluctuations in judicial salary; the

decline in private practice as a prior occupation dates to the Eisenhower administration, and the

increase in service as judge as a prior occupation dates at least to the Franklin D. Roosevelt

administration, while judicial salary has risen and fallen several times over those same time

periods. Establishing the correlation that is a prerequisite for causation requires more convincing

data than the data presented thus far by advocates of higher judicial salary.

Similarly, determining that low judicial salaries cause judges to depart early, either by resigning

or by retiring rather than taking senior status, can be difficult. The correlations between judicial

salary and the number of judges who resign or retire (rather than taking senior status) again

appear to be limited. The proportion of judges resigning declined in every four-year period

between 1985 and 2000, and judicial salary rose in all but the last (1997-2000) four-year period in

that time interval, suggesting that there may have been, at least between 1985 and 1996, an

inverse relationship between judicial salary and the proportion of judges who resign. That pattern,

however, does not necessarily hold for the 1997-2006 period. Over those 10 years, real judicial

salaries dropped during the 1997-2000 period and then fluctuated little. Yet, the number of judges

who resigned varied from 0% in 1997-2000 to 7.8% in 2001-2004, two periods in which real

judicial salaries differed by less than 1.1% (the median real salary for district court judges was

$166,618 for 1997-2000 and $168,441 for 2001-2004).

Finally, the percentage of judges who opted to retire rather than take senior status between 1985

and 2007 appeared to decline—to 1.22% between 2005 and 2007 from 4.95% between 1985 and

1988. If low judicial salary caused retirements, then the rate of retirements should have remained

constant from 1997 to 2007, a period of nearly constant real salary for federal judges. Instead, the

percentage of judges who retired rather than take senior status declined over that time period.

Concluding that judicial salary has caused fewer judges to be drawn from private practice (or

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more from other ranks of the judiciary), or that judicial salary causes judges to resign or retire are

claims that require the development of more conclusive evidence.32

ȱ ȱȱ

Even if correlations are established, they may exist due to intervening factors—some

unconsidered factor which may explain the relationship between the two factors observed to

correlate with one another. In the case of the relationship between judicial salary and judicial

recruitment and judicial tenure, one might consider, as a potential intervening variable, the impact

of the changing nature of the appointment process. The average confirmed district court nominee

was pending before the Senate for 70 days if nominated by President Jimmy Carter; through the

109th Congress, the average time from nomination to confirmation of confirmed district court

nominees by President George W. Bush was 171 days.33 Independent of fluctuations in judicial

salary, the longer amount of time that now passes between nomination and confirmation may

deter candidates who otherwise might be interested in federal judgeships from expressing interest

in those positions. President Bush suggested that the contemporary practices in the nomination

and confirmation process may have affected who will serve in the federal judiciary:

Lawyers approached about being nominated will politely decline because of the ugliness,

uncertainty, and delay that now characterizes the confirmation process. Some cannot risk

putting their law practices—their livelihoods—on hold for long months or years while the

Senate delays action on their nominations. Some worry about the impact a nomination might

have on their children, who would hear dad or mom’s name unfairly dragged through the

mud. So they decide to remove themselves from consideration. When people like this decline

to be nominated, they miss out on a great calling. But America is deprived of something far

more important: the service of fair and impartial judges.34

Establishing a causal relationship between judicial salary and departures may also be confounded

by intervening variables. Generally speaking, departures may be driven by job satisfaction in

addition to concerns about judicial salary. Judges whose caseloads are higher may be more likely

There is a small body of academic literature that evaluates the influences on judges’ decisions to leave the bench.

That literature has reached competing conclusions. Deborah Barrow and Gary Zuk find that salary increases reduce

retirements by district court judges in a given year, but have no effect on the number of retirements by court of appeals

judges. James Spriggs and Paul Wahlbeck find that increases in (inflation-adjusted) salary delay departure for court of

appeals judges appointed by Democratic presidents, but have no effect on judges appointed by Republican Presidents.

David Nixon and J. David Haskin find that the effect of salary on individual-level retirement decisions is mixed, but

that more court of appeals judges retire in years with lower salary. Albert Yoon argues that judicial salaries do not

appear to effect judicial tenure or judicial retirement. However, all of these works span several different eras of

retirement policy and do not appear to distinguish between retiring and taking senior status. See Deborah J. Barrow and

Gary Zuk, “An Institutional Analysis of Turnover in the Lower Federal Courts, 1900-1987,” Journal of Politics, vol.

52, no. 2 (May 1990); James F. Spriggs II and Paul J. Wahlbeck, “Calling it Quits: Strategic Retirements on the Federal

Courts of Appeals, 1893-1991,” Political Research Quarterly, vol. 48, no. 3 (September 1995); David C. Nixon and J.

David Haskin, “Judicial Retirement Strategies: The Judge’s Role in Influencing Party Control of the Appellate Courts,”

American Politics Quarterly, vol. 28, no. 4 (October 2000); and Albert Yoon, “Love’s Labor’s Lost? Judicial Tenure

Among Federal Court Judges: 1945-2000,” California Law Review, vol. 91, no. 4 (July 2003).

CRS Report RL31868, U.S. Circuit and District Court Nominations by President George W. Bush During the 107th109th Congresses, by (name redacted), Maureen Bearden, and Kevin M. Scott, p. 35. President Jimmy Carter’s

confirmed nominees to the courts of appeals spent an average of 69 days pending in the Senate; on average, 300 days

elapsed between first nomination and confirmation of President George W. Bush’s confirmed court of appeals

nominees. All data are current through the end of the 109th Congress (2005-2006).

U.S. President (G.W. Bush), “Remarks at The Federalist Society’s 25th Annual Gala,” Weekly Compilation of

Presidential Documents, vol. 43 (November 15, 2007), p. 1510.

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to resign than judges whose caseloads are lower. Several studies have indicated that the per-judge

caseload in many districts and circuits is much higher than it was 30 or 40 years ago, and may

contribute to decisions judges make to depart the federal bench.35 Judges may also be concerned

about personal security, collegiality on their courts, and a myriad of other factors when they

consider remaining on the bench or departing the bench. If one adds these possible intervening

variables to the weak correlations discussed above, it becomes clear that more evidence may be

necessary to evaluate the degree to which judicial salary causes the changes that may be taking

place in the federal judiciary.

ȱ¢ȱȱȱȱȱ

Real salaries for district court judges declined 21.5%—to $165,200 from $210,570—between

1969 and 2006 while the real salaries of other wage earners rose over the same time period. As

discussed below, the salaries of individuals federal judges may consider as professional peers—

law professors, partners in law firms—have increased at rates greater than those of the average

wage earners, leaving federal judges with the perception that their salaries continue to fall further

behind where they were in 1969 than the actual dollar figures illustrate. That perception, and any

deleterious effects that perception may have on who becomes a judge, how long judges remain on

the bench, and the quality of the work they provide as federal judges, may magnify observed

effects in ways that are difficult to measure using objective criteria. That is, federal judges may

not be exiting the federal judiciary at greater rates during periods of lower salary, but the

perception that they are doing so may affect the morale of the judiciary.

ȱȱȱ

Although statistical analysis may not reveal a strong effect for salary on the career decisions of

federal judges, several former federal judges have pointed to salary as one of their reasons for

departure.36 Furthermore, though the effect of judicial salary on recruitment and retention in the

federal judiciary may be modest, some advocates for higher judicial salary argue that the role of

judicial salary in career considerations may continue to grow. As the American Bar Association

and Federal Bar Association have noted of the departures of federal judges, “even though the

absolute number of departures is not large, the trend is alarming because the number is increasing

significantly (even after factoring in the overall growth of the federal judiciary) in a profession

where there is an expectation, grounded in the Constitution, of life tenure.”37

As an illustration, the number of unweighted filings per authorized district court judgeship rose from 448 in 1990 to

545 in 2004, then fell to 482 in 2006. The number of weighted filings per district court judgeship reflects a similar

pattern. One caveat to keep in mind is that this value does not account for senior status judges or vacant judgeships. See

http://www.uscourts.gov/judicialfactsfigures/2006/Table602.pdf. “Weighted filings” use a system developed by the

Federal Judicial Center to account for how much of a judge’s time each case type should take. Weighted filings is an

annual measure of court workload updated every three months. According to the Administrative Office for the United

States Courts, “average civil cases or criminal defendants each receive a weight of approximately 1.0; for more timeconsuming cases, higher weights are assessed (e.g., a death-penalty habeas corpus case is assigned a weight of 12.89);

and cases demanding relatively little time from judges receive lower weights (e.g., a defaulted student loan case is

assigned a weight of 0.031).” See http://www.uscourts.gov/library/fcmstat/cmsexpl06.html.

A collection of selected statements from federal judges can be found in American Bar Association and the Federal

Bar Association, “Federal Judicial Pay: An Update on the Urgent Need for Action,” May 2003, pp. 27-28.

Ibid, p. 20.

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An informed consideration of options available to Congress, should it wish to address the issue of

judicial salary, requires an understanding of the fluctuations that have occurred in judicial salary

over time. It also requires choosing an appropriate time frame over which to evaluate claims

made in favor of and against raising judicial salary. Any choice of baseline has strengths and

weaknesses. One useful way to choose baselines may be to consider changes in the non-salary

compensation that federal judges receive. In monetary terms, the most significant non-salary

benefit is the retirement package available to federal judges who choose to vacate their position

by retirement or by taking senior status. When comparing judicial salary over time, it may prove

useful to keep the changes in judicial retirement benefits in mind. Comparisons of judicial salary

within, rather than across, the eras defined by retirement benefits (1955-1984, 1984-1989, and

1989-present) could be more useful. Directly comparing salary data across these time periods

should be undertaken with caution, as any such comparison does not account for the non-salary

compensation available to federal judges. By creating the Rule of 80, the 1984 legislation38 made

it easier for judges to qualify for either senior status or retirement, which may have increased the

attractiveness of federal judgeships without a direct increase in the salary in that time interval.

The 1989 legislation39 may have made senior status a more attractive option because judges in

senior status could qualify for the same salary adjustments as active judges. At the same time, the

1989 legislation may have encouraged federal judges to retire rather than taking senior status

because it required, for the first time, that federal judges perform a certain level of work to

qualify to remain in senior status.

The Judicial Conference, and federal judges who have testified on the issue of judicial salary,

favor comparisons using 1969 as a baseline.40 In that year, the salaries of federal judges rose to

$40,000 from $30,000. In 2006 dollars, the increase was to $219,727 from $173,793—a raise of

$45,934. The salaries paid federal judges in 1969 were the highest real salary for federal judges in

any year since at least 1913.41 While comparisons of judicial salary since 1969 span more than

P.L. 98-353, 98 Stat. 333, 350.

P.L. 101-194, 103 Stat. 1716, 1770-1771.

See, e.g., John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The Third Branch, January 2007.

Testimony of Justice Stephen Breyer, U.S. Congress, House, Committee on the Judiciary, Subcommittee on Courts, the

Internet, and Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess., April

19, 2007 (not yet printed); available at http://www.uscourts.gov/testimony/JusticeBreyerPay041907.pdf. Testimony of

Justice Samuel Alito, U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts, the Internet, and

Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess., April 19, 2007 (not

yet printed); available at http://www.uscourts.gov/testimony/JusticeAlitopay041907.pdf. Testimony of Justice Anthony

M. Kennedy, U.S. Congress, Senate Committee on the Judiciary, Hearing on Judicial Security and Independence, 110th

Cong., 1st sess., February 14, 2007 (not yet printed). CQ Congressional Transcripts; available at http://www.cq.com/

committees.do. Administrative Office of the U.S. Courts, “Need for Federal Judicial Pay Increase Fact Sheet”;

available at http://www.uscourts.gov/judicialcompensation/payfactsheet.html.

Russell R. Wheeler and Michael S. Greve, “How to Pay the Piper: It’s Time to Call Different Tunes for

Congressional and Judicial Salaries,” Issues in Governance Studies, Brookings Institution-American Enterprise

Institute, April 2007, pp. 13-15. (Hereafter, cited as Wheeler and Greve, “How to Pay the Piper.”) The Bureau of Labor

Statistics does not track the Consumer Price Index (CPI) before 1913, making comparisons of pre-1913 values to post(continued...)

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one era of retirement, using 1969 as a baseline may be useful because data on salaries of

comparable professions from that year, collected by the Judicial Conference, may help assess the

change in judicial salaries relative to other professions. It would, however, be misleading to

compare patterns in departure from the bench across the different time periods, given changing

meanings assigned to “retire” and “resign,” distinctions that are an important part of the judicial

salary debate.

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Figure 4, below, illustrates real (dollar values adjusted for inflation) salaries for federal district

court judges. Appendix B includes these nominal and real values for the salaries of district court

judges, court of appeals judges, and the average for American wage earners over the 1955-2006

time interval. As the data presented in Figure 4 and Appendix B indicate, judicial salaries have

varied considerably since 1955; their lowest real value (since 1955) occurred in 1986, when the

real salary was $144,762 for district court judges and $153,039 for court of appeals judges. The

highest real salaries in the last 50 years occurred in 1969, when the real salary was $210,570 for

district court judges and $222,018 for court of appeals judges.42 Within this range, the current

salaries are closer to the minimum than the maximum real values, but they are also not very far

from the median values for district and court of appeals judges over the 1955-2006 interval. The

median real salary for district court judges between 1955 and 2006 is $167,047. The 2006 real

salary for district court judges, $165,200, was 98.9% of the median real salary for the 1955-2006

period.43

(...continued)

1913 values problematic. Given adequate data on inflation, one might consider evaluating judicial salaries back as far

as 1891, the date of the establishment of the current hierarchy of district courts, courts of appeals, and the U.S.

Supreme Court. Most scholars of the history of the federal judiciary treat 1891 as the time of the creation of the

“modern” federal judiciary. See, e.g., Howard Gillman, “How Political Parties Can Use the Courts to Advance Their

Agendas: Federal Courts in the United States, 1875-1891,” American Political Science Review, vol. 96, no. 3

(September 2002), pp. 520-521. From 1891 to 1903, district court judges received an annual salary of $5,000 and court

of appeals judges received an annual salary of $6,000; from 1903 to 1919, the salaries were $6,000 and $7,000,

respectively. See http://www.fjc.gov/history/home.nsf/page/salaries_bdy.

Most other sources, including the Federal Judicial Center http://www.fjc.gov/history/home.nsf/page/salaries_bdy and

the Administrative Office for the U.S. Courts http://www.uscourts.gov/salarychart.pdf, report salaries for district judges

in 1969 as $40,000 (nominal) and $219,727 (real), and $42,500 (nominal) and $233,460 (real) for court of appeals

judges. But those salaries took effect on March 1, 1969; during the first two months, federal judges were paid at the

same rate as their 1968 salaries.

The 2006 real salary for court of appeals judges, $175,100, was 98.3% of the 1955-2006 median real salary,

$178,139.

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Figure 4. Real Salaries of U.S. District Court Judges, 1955-2006

250,000

200,000

150,000

100,000

50,000

Judicial salary data provided by the Federal Judicial Center, available at http://www.fjc.gov/history/

home.nsf/page/salaries_bdy. See Appendix for specific values. For specific dates of pay adjustments, see

http://www.uscourts.gov/salarychart.pdf. Adjustments for real salary data were made using the Bureau of Labor

Statistics CPI Inflation Calculator, available at http://data.bls.gov/cgi-bin/cpicalc.pl. Real salaries are in 2006 dollars.

If judicial salary changed during a year, the salaries were calculated based on the salary judges received for each

portion of the year. This affects calculations for 1969, 1977, and 1987. In 1987, for example, district court judges’

annual salary was $81,100 from January 1-February 28, and $89,500 from March 1 forward. A district court judge

who worked for the entire year would have received $88,100 in salary that year.

Source:

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Should Congress choose to act to change the compensation for federal judges, its choices are not

limited to increasing the salary for federal judges, although such a choice may address the

immediate concerns of those who advocate for higher judicial salary. Congress may also choose

to consider several changes to the structure of salary and benefits for federal judges, including

“de-linking” congressional and judicial salaries, paying judges different salaries based on the

location of their chambers, revising retirement benefits for federal judges, altering survivor

benefits for the spouses and dependents of federal judges, reconsidering limits on the outside

income judges are permitted to earn, convening the Citizens’ Commission on Public Service and

Compensation, and creating “automatic” adjustments for judicial salaries.

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Foremost among the requests of Congress by the Judicial Conference is an increase in the salary

paid to federal judges, though the Judicial Conference, and individual judges and justices, have

generally not outlined a specific salary level they would like Congress to provide. Justice Breyer,

in response to a question posed by Representative Steve Cohen of Tennessee, said “the rule [Art.

III of the Constitution] is supposed to be no diminishment of compensation. Let’s keep it real, and

let’s say the compensation should stay the same compared to the average American that it was

when I took office. That’s what I think most judges would say.”44

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A starting point for considering the appropriate level of judicial salary may be determining the

proper comparison group for federal judges. Judicial salaries have been compared with those of

lawyers in private practice, heads of non-profit corporations, and judges in other countries.45 No

other occupation offers a perfect comparison to the work of federal judges. Accordingly, making

any comparisons across professions may prove problematic. Many federal judges come from

private practice, but many also come from legal academia, state judiciaries, and other positions in

the government (see Figure 1, above). One may consider comparing salaries in those professions

from which judges come to judicial salaries with the proviso that such a comparison likely does

not fully account for the compensation (monetary and non-monetary) that federal judgeships

offer.

Members of the judiciary also compare the salaries of federal judges with those of law school

professors and deans. In 1969, the dean of Harvard Law School made $40,000 ($219,728 in 2006

dollars)—very close to the then-salary of $38,333 for U.S. district court judges and almost

identical to the $40,417 salary of U.S. court of appeals judges. Today, according to the

Administrative Office of the U.S. Courts, the deans of “top” law schools earn $430,000, or 95.7%

more than the $219,728 real salary of the dean of Harvard Law School 1969.46 Senior professors

at Harvard Law School earned, on average, $28,000 in 1969 ($153,809 in 2006 dollars). Senior

professors at “top” law schools now earn, on average, $330,000, 114.6% more than the $153,809

real salary of senior professors at Harvard Law School in 1969.47 By comparison, district court

judges earn $165,200, 21.5% less than what they earned (in 2006 dollars) in 1969. Judges on the

U.S. courts of appeals earn $175,100, 21.1% less that what they earned (in 2006 dollars) in 1969.

Testimony of Justice Stephen Breyer, U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts,

the Internet, and Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess.,

April 19, 2007 (not yet printed). CQ Congressional Transcripts. Available at http://www.cq.com/committees.do.

National Commission on Public Service (Volcker Commission), Urgent Business for America: Revitalizing the

Federal Government for the 21st Century; John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The

Third Branch, January 2007, pp. 1-2.

Comparison of these two numbers should be made with caution, as the Administrative Office of the U.S. Courts

defines “top” law schools as those rated in the top 25 of the annual survey of U.S. News and World Report. The

comparable salaries of deans of “top” law schools in 1969 may have been higher or lower than the salary of the dean of

Harvard Law School at the time. Data for 1969 and 2006 available at http://www.uscourts.gov/judicialcompensation/

factsheetcharts.html.

In addition to the caveats that apply to comparing salaries of deans, the Administrative Office notes that the 1969

data were compiled based on nine-month teaching schedules; the 2006 data were based on 11-month teaching

schedules. Data for 1969 and 2006 available at http://www.uscourts.gov/judicialcompensation/factsheetcharts.html.

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In some respects, the working conditions for federal judges compare well to those of law

professors. Like law professors once they are granted tenure, federal judges have considerable job

security. Like law professors, federal judges have a diverse workload. Like law professors,

federal judges enjoy a certain amount of prestige. But the monetary components of the two

professions may not lend themselves to perfect comparisons. Federal judges may enjoy retirement

benefits that are more generous than those of law professors, but law professors likely have much

more freedom to set their own schedules and choose work that they find interesting. Law

professors may also earn additional salary as consultants (though restrictions may be imposed by

their universities on the consulting they may do). Federal judges may earn no more than 15% of

the annual base pay rate for Level II of the Executive Schedule in outside earned income; in 2007,

federal judges were limited to earning no more than $25,200 in outside earned income.48

Comparing the two professions has other limits as well. Law schools are free to bid for the

services of faculty members in a market. Such a market does not exist for federal judges, as only

the federal government purchases the services of federal judges. Such a market for law professors

may drive up salaries of the best law professors, whereas such competition for services does not

exist within the judiciary (“better” judges are not paid more than other judges). At the same time,

both legal academia and the judiciary are part of a broader market for legal services, and the

federal judiciary must compete with legal academia, private practice, and other government

agencies for the services of qualified individuals.

Nothing published by the federal judiciary, however, compares the salaries of federal judges with

those of state judges. Judges at the state level perform functions comparable to those of federal

judges, though workload, salary, and prestige vary considerably across the different states. State

judges also have less job security than federal judges, as many of them must win elections to

retain their positions. Despite the imperfect comparison, the data on the salaries of state judges

may help illustrate the degree to which trends in federal judicial salary are trends common to all

judges or unique to members of the federal judiciary. The average (mean) salary for associate

justices on state courts of last resort in 2006 was $140,150.49 By comparison, the average (mean)

salary for associate justices on state courts of last resort in 1976 was $38,152 ($135,175 in 2006

dollars).50 In other words, the average annual real salary of associate justices of state supreme

courts rose 3.7% between 1976 and 2006. In that time, the annual salary of federal district court

judges rose 6.0% (from $155,895 to $165,200 in real dollars).

Table 2, below, outlines several possible comparisons to other professions or positions in legal

services and calculates the salaries federal district court judges would receive had their salaries

experienced comparable growth to these other professions or positions between 1969 and 2006.

As noted above, 1969 provides a high baseline for the salaries of federal judges, as their salaries

in 1969 were the highest real salaries federal judges have received since at least 1913. At the

same time, the Judicial Conference provides data for other professions in 1969; those data are not

available from the Judicial Conference for other years, so comparisons to 1969 are driven, in part,

by data availability.

5 U.S.C. App. § 501(a).

National Center for State Courts, Survey of Judicial Salaries, vol. 32, no. 1 (January 2007). Available at

http://www.ncsconline.org/WC/Publications/KIS_JudComJudSal010107Pub.pdf.

National Center for State Courts, Survey of Judicial Salaries, vol. 2, no. 3 (January 1976). Available at

http://www.ncsconline.org/WC/Publications/KIS_JudComJudSal010176.pdf.

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As the data in Table 2 indicate, salaries in all other fields reported have increased, in real terms,

since 1969. For some groups, particularly all lawyers and associate justices of state supreme

courts, those increases, relative to inflation, have been quite modest. In other areas, particularly

the legal academy and among law partners, the increase in real salary has been more pronounced.

Federal district court judges represent the only group (presented here) for which real salaries

declined in the 1969-2006 period.

Table 2. Change in Salaries of U.S. District Court Judges and Selected Other

Professions, 1969-2006

Comparison

Group

District Court Judges

All Wage Earners

All Lawyers

Profits of Law

Partners

Top 25 Law School

Senior Professors

Top 25 Law School

Deans

State Supreme Court

Associate Justices

Percentage

Change, 19692006

2006 Salary of District Court

Judges If Salary Had Kept Pace

with Comparison Group

1969 Real

Salary

2006 Real

Salary

$210,570

$32,376

$101,547

$151,714

$165,200

$38,651

$101,695

$264,128a

-21.5%

+19.4%

+0.1%

+74.1%

—

$251,421

$212,676

$366,602

$153,809b

$330,000

+114.6%

$451,883

$219,728b

$430,000

+95.7%

$412,085

$135,175c

$140,150

+3.7%

$218,361

Data for salary of district court judges derived from Federal Judicial Center, available at

http://www.fjc.gov/history/home.nsf/page/salaries_bdy. See notes to Table 1 for additional details. Average

wages are calculated by totaling the compensation (wages, tips, and the like) subject to federal income taxes, as

reported by employers on Form W-2 and dividing by the number of wage earners for whom data are reported.

Data are available at http://www.ssa.gov/OACT/COLA/AWI.html. For lawyers, the 1969 data are derived from

Richard H. Sander and E. Douglass Williams, “Why Are There So Many Lawyers?: Perspectives on a Turbulent

Market,” Law & Social Inquiry, vol. 14, no. 3. (Summer, 1989), p. 448. The 2006 data are from U.S. Department of

Labor, Bureau of Labor Statistics, National Compensation Survey: Occupational Wages in the United States, June 2006,

p. 7. Available at http://www.bls.gov/ncs/ocs/sp/ncbl0910.pdf. Profits of law firm partners are calculated from

Department of the Treasury, Internal Revenue Service, Statistics of Income 1969: Business Income Tax Returns,

Publication 438 (10-72), 1972, p. 106. Value calculated by dividing net profit by number of partners for legal

services partnerships with and without net profit. For 2004 data, see Department of Treasury, Internal Revenue

Service, Statistics of Income 1994: Business Income Tax Returns. Available at http://www.irs.gov/pub/irs-soi/

04pa01.xls. Value calculated by dividing ordinary business income by number of partners for legal services. Data

for law school professors and deans provided by Administrative Office of the U.S. Courts, available at

http://www.uscourts.gov/judicialcompensation/factsheetcharts.html. “Top 25” law schools are according to the

ratings provided by U.S. News and World Report (current rankings available at http://gradschools.usnews.rankingsandreviews.com/usnews/edu/grad/rankings/law/brief/lawrank_brief.php. Data for state

supreme court associate justices derived from National Center for State Courts, Survey of Judicial Salaries,

available at http://www.ncsconline.org/WC/Publications/KIS_JudComJudSalArchives.html. All figures adjusted for

inflation using CPI Inflation Calculator at http://data.bls.gov/cgi-bin/cpicalc.pl.

a. Data from 2004 are adjusted to 2006 dollars using CPI Inflation Calculator. Doing so assumes no real wage

growth in 2005 or 2006.

b. Data from 1969 are for Harvard Law School only.

c. The earliest available data for associate justices of state supreme courts are from 1976, not 1969. Data from

1976 are adjusted to 2006 dollars using CPI Inflation Calculator. Doing so assumes no real wage growth

from 1969 to 1976.

Source:

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Related to the issue of judicial salary is the relationship between the salaries of federal judges and

Members of Congress.51 To argue that judicial and congressional salaries are “linked” might

create the mistaken impression that judicial and congressional (and executive salaries, as

Executive Level II salaries are also “linked” at the same level) all must move at precisely the

same rate. Such an impression is only partially correct. “There is no constitutional or statutory

requirement (other than the provision of law establishing the [Citizens’ Commission on Public

Service and Compensation]) that the salaries of federal executive branch officials and federal

justices and judges be limited by the salaries of Members of Congress, or that Member pay be

limited by the salaries of these federal executive and judicial officials.”52 Unlike adjustments to

Executive Schedule (EX) and congressional salaries, which take effect under the Ethics Reform

Act of 1989 unless Congress acts to block them, adjustments to judicial salaries require

affirmative action by Congress in order to be raised. The Further Continuing Appropriations for

Fiscal Year 1982 Act requires that any increase in the salaries of judges and justices be

“specifically authorized by Act of Congress hereafter enacted.”53 Congress did not enact the

recommended 1.7% pay increase for federal judges for calendar year 2007; S. 197, which would

provide the increase effective January 1, 2007, passed the Senate by unanimous consent on

January 22, 2007. The House has thus far taken no action on the bill. The legislation is currently

pending before the Courts, Internet, and Intellectual Property Subcommittee of the House

Judiciary Committee.

While there is no statutory linkage between congressional and judicial salaries, the recommended

annual increase is the same for members of Congress, Executive Schedule (EX) employees, and

federal judges. Until 2007, Congress enacted the same increase for congressional, judicial, and

EX salaries. Under the Ethics Reform Act of 1989, the annual salary adjustments of Members of

Congress, the Vice President, persons employed on the Executive Schedule (EX), and federal

judges are based on the Employment Cost Index (ECI) for private industry wages.54 Specifically,

salary adjustments reflect the December-to-December change in the ECI, reduced by 0.5%.55 An

additional statute restricts the rate of adjustment for judicial, congressional, and executive

officials whose salaries are covered by the Ethics Reform Act of 1989 to being no greater than the

rate of adjustment for the base pay of General Schedule (GS) employees.56

Those who refer to judicial and congressional salaries as “linked” correctly point to the fact that

the annual recommended salary adjustment (the December-to-December change in the ECI,

reduced by 0.5%) is the same for federal judges, Members of Congress, and EX employees. But

the process by which the annual adjustment is enacted into law differs for the three sets of

officials. For EX employees and Members of Congress, the recommended adjustment takes place

See, e.g., Wheeler and Greve, “How to Pay the Piper.”

CRS Report RS20388, Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials,

by (name redacted). See also CRS Report RL33245,

Legislative, Executive, and Judicial Officials: Process for

Adjusting Pay and Current Salaries, by (name redacted).

P.L. 97-92, § 140.

CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current

Salaries, by (name redacted).

Ibid. See 28 U.S.C. § 461(a)(1).

CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current

Salaries, by (name redacted). See 28 U.S.C. § 461(a)(2).

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unless Congress acts to block the increase. Since enactment of the Ethics Reform Act of 1989,

Congress has blocked enactment of the increase for EX employees and Members of Congress in

1994, 1995, 1996, 1997, and 1999. In 2007, Congress blocked enactment of the increase for

Members of Congress, but not for EX employees. The 2007 decision by Congress to not adjust

congressional or judicial salaries, but to allow EX salaries to increase, represented the first time

since enactment of the Ethics Reform Act of 1989 that EX Level II employees, Members of

Congress, and federal district court judges have received different salaries. As a result, in 2007,

EX Level II employees (deputy secretaries of departments, secretaries of military departments,

and heads of major agencies) received salaries of $168,000, while Members of Congress and

district court judges received salaries of $165,200.

In 2008, EX Level II employees, federal judges, and Members of Congress will receive a cost-ofliving adjustment of 2.5% to their 2007 salaries. For EX Level II employees, the 2008 salary rate

is $172,20057 and Members of Congress and district court judges will receive a 2008 salary of

$169,300.

Because the mechanisms by which the salary recommendations for EX employees, Members of

Congress, and federal judges are enacted differ, it may not be accurate to label those salaries as

“linked,” to the extent that term implies that the salaries can only move together. It may be more

accurate to label the practice of providing Members of Congress, federal district judges, and EX

Level II employees the same salaries as “pay parity.”

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Advocates of abandoning parity in judicial and congressional salaries contend that the rise of

judicial salaries has slowed since they were statutorily linked to the salaries of Members of

Congress.58 The relationship between pay parity and salary growth, however, is complex.59

Between 1955 and 1986, a period when Congress, in statutorily increasing judicial salaries, did

not link those salaries to its own levels, real salaries of district court judges fell by 14.5% (0.5%

per year),60 to $144,762 in 1986 from $169,254 in 1955. Between 1987 and 2006, the real value

of judicial (and congressional) salaries rose 5.9% (0.3% per year), to $165,200 in 2006 from

$156,007 in 1987.61 Based on this evidence, it appears that judicial salaries to date have actually

See “Salary Table 2008-EX” at http://www.opm.gov/oca/08tables/html/ex.asp.

See, e.g., Wheeler and Greve, “How to Pay the Piper.”

Congress set the salaries of Members of Congress and district judges at the same rate ($89,500) starting in 1987,

though the current process for recommending salary adjustments was not enacted until 1989. At the time of enactment

of the Ethics Reform Act of 1989, the salaries of Members and district judges were the same. The provision of the

Ethics Reform Act of 1989 dictating the method for calculation of annual adjustments to be the same for Members and

district judges, and Congress’s decisions since 1989 to not block increases in congressional salaries and, at the same

time, allow increases in judicial salaries, has left the salaries equal in every year since 1987.

The translation from overall to annual percentage increases and decreases relies on the formula for computing simple

interest: S=P(1+rt), where S=future value, P=present value, r=rate, and t=time. The formula was then solved for r.

This calculation should be interpreted with caution given its starting and ending points. The choice of 1955 as a

baseline was discussed above; also, as discussed above, the 1986 salaries of federal judges were the lowest real salaries

over the 1955-2006 time period. Between 1955 and 1986, wage earners nationwide experienced a real increase of 28%,

or 0.9% per year. Real wages for all workers rose by $7,027 (to $31,862 from $24,835 in 2006 dollars). See National

Average Wage Indexing Series at http://www.ssa.gov/OACT/COLA/AWI.html; nominal values were adjusted for

inflation using the Bureau of Labor Statistics CPI Inflation Calculator at http://data.bls.gov/cgi-bin/cpicalc.pl.

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risen more under pay parity than absent a congressional practice of equal salary for Members of

Congress and federal district judges.

This finding is reinforced by accounting for wage growth among all workers over the same time

periods. Over the 1955-2006 time period, judicial salaries fared better relative to all wage earners,

on average, when they were equal to the salaries of Members of Congress than when judicial

salaries were not necessarily equal to those of Members of Congress. Between 1955 and 1986,

the real value of the National Average Wage Index increased by 28% (0.9% per year); the real

value of the National Average Wage Index increased by 16.6% (1.0% per year) between 1987 and

2006.62 Relative to all wage earners, judicial salaries fell by about 1.4% per year between 1955

and 1986 (0.5% decline per year for judges compared to 0.9% increase per year for all wage

earners). After 1989, judicial salaries fell about 0.7% per year relative to all wage earners (0.3%

increase per year for judges compared to 1.0% increase per year for all wage earners).

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The growth of congressional salaries has slowed more than the growth of the salaries of federal

judges since the two salaries have been equal. Between 1955 and 1986, the real salaries of

Members of Congress fell from $156,716 to $138,140, an 11.9% (0.4% per year) decrease in real

salary. Salaries of Members of Congress, like those of federal judges, have risen 0.3% per year

since 1987 (as noted above, the real salaries of federal judges fell 0.5% per year between 1955

and 1986). Salary linkage, then, appears to have increased the growth of congressional salaries (to

0.3% per year increase from 0.4% per year decrease) slightly less than linkage has increased the

growth of judicial salaries (to 0.3% per year increase from 0.5% per year decrease).

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Should Congress choose to raise the salaries of federal judges or change how the salaries of

federal judges are set, it could consider ending the practice of parity of congressional and judicial

salaries and allow them to increase at different rates. The primary argument against pay parity is

that the practice holds back judicial salaries:

For 20 years, legislators have matched their salaries to those of United States district judges

and deputy cabinet secretaries. They hoped that coupling their own compensation with that

of officials less in the public eye would salvage legislative salary increases despite voter

hostility. However, Congress has still been reluctant to increase its salaries (compared to,

say, average worker wage gains). Thus, linkage has not produced the benefits legislators

anticipated for their own salaries, and at the same time, it has held back less controversial

salary increases for judges and executives.63

There are at least two arguments in favor of pay parity. First, some Members of Congress believe

that their work is equal to that of federal district judges and, accordingly, that both should receive

the same salary. As Representative F. James Sensenbrenner has argued,

The real value (2006 dollars) of the National Average Wage Index in 1955 was $24,835; in 1986, it was $31,862; in

1987, it was $32,701; in 2006, it was $38,145. The National Wage Index provides data from 1951 to 2005; the 2006

value was calculated by adjusting the 2005 value for inflation, in effect assuming no real wage growth from 2005 to

2006.

Wheeler and Greve, “How to Pay the Piper.”

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I am one of those that believes that when you’re dealing with constitutional officers of the

government in all three branches—and you and we are—there should be some type of

comparability in compensation since the branches are separate and co-equal....And I think

the real question that has to be answered is not whether you deserve more pay or you don’t

deserve more pay, but are the duties and responsibilities and time involved in discharging the

duties of a federal district judge worth that much more than the duties, responsibilities and

time involved in being a member of the House of Representatives, or a United States

Senator.64

The second argument for linkage is more pragmatic; Members of Congress may favor pay parity

as a mechanism to justify raising their own salaries.65 Before 1987, Congress tended to increase

judicial salaries first and follow those increases by raising the salaries of Members. Since 1928

(and with the exception of the period from 1969 to 1978, when salaries for Representatives and

Senators exceeded those of district judges), salaries of district judges have generally risen before

the salaries of Representatives and Senators. Were Congress to de-link salaries, one might expect

a resumption of the pattern of judicial salaries rising first, followed by congressional salaries.

This pattern would mean Members of Congress might have to consider their own salary increases

as separate legislative items (rather than as part of a broader salary package for officials across all

three branches of government).

Pay parity is an important component of the debate over the salaries of federal judges; should

Congress decide to address the issue of judicial salary, it could choose to consider the advantages

and disadvantages of the practice of paying federal district judges and Members the same salary.

The three pieces of legislation introduced in the 110th Congress that offer substantial increases in

the salaries of federal judges—H.R. 3753, S. 1638, and S. 2353—would, if enacted, end the

practice of parity between congressional and judicial salaries, as none currently contain language

increasing congressional salaries.

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Federal judges have, since 1891, been paid the same salaries regardless of the location of their

chambers or residences.66 In contrast, General Schedule federal employees across the country

receive different salaries that depend on the location of their duty station. Those who argue for

higher salaries for federal judges often, implicitly or explicitly, express concern that the same

salary for all federal judges can hamper the ability to recruit candidates for federal judgeships in

areas of the country where the cost of living is higher. For example, Justice Antonin Scalia

reportedly noted, in a December 2006 speech, “if you become a federal judge in the Southern

District of New York, you can’t raise a family on what the salary is.”67

U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property,

Oversight Hearing on Federal Judicial Compensation, 110th Cong., 1st sess., April 19, 2007 (not yet printed) CQ

Congressional Transcripts. Available at http://www.cq.com/committees.do.

Wheeler and Greve, “How to Pay the Piper.”

Judicial salaries before 1891 were based on the amount of work that Congress anticipated federal judges in the

different locations would perform. See http://www.fjc.gov/history/home.nsf/page/dc_bdy.

Matthew Barakat, “Scalia Argues for Better Judicial Pay,” Associated Press, December 13, 2006. As of October 23,

2007, 40 of the 44 active and senior judges in the Southern District of New York had chambers in Manhattan; the

remaining four had chambers in White Plains.

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Congress might wish to consider taking into account the cost of living in different regions of the

country when determining the salaries that federal judges and justices receive. Such action has

historical precedent; before 1891, Congress regularly paid different salaries to judges serving in

different districts; in Illinois, for example, judges on the Northern District of Illinois were paid an

annual salary of $4,000 from 1867 to 1890; over the same time period, judges on the Southern

District of Illinois were paid an annual salary of $3,500.68

Locality pay for General Schedule employees is based on duty station, or where the employee is

assigned to work, and not residence. That may create unexpected difficulties as applied to the

judiciary, as judges have some freedom to choose where to locate their chambers. Within a given

judicial district or circuit, the judicial council of each circuit may assign district judges to a

particular location within each district.69 Circuit judges have greater latitude on where to locate

their chambers and typically travel to the same location (usually the location of the courthouse for

the circuit court, though panels occasionally hear cases at other courthouses in the circuit and at

other locations, including law schools) to hear oral arguments for one or two weeks each month.

Granting locality pay to judges may concentrate judges’ chambers in different areas of each

district or circuit. For example, the Northern District of Illinois has an Eastern Division (with a

courthouse in Chicago) and a Western Division (with a courthouse in Rockford). If Congress

were to adopt the same locality pay areas used by the Office of Personnel Management,70 judges

with chambers in Chicago would be paid more than judges with chambers in Rockford, and

judges whose chambers are in Rockford might seek to move their chambers to Chicago, a higherpaying locality within the same judicial district.

Congress might choose to address this matter in several ways. First, it could choose to do nothing.

Second, it might choose to allocate judgeships within the divisions of each district. Current

federal law establishing the boundaries of the U.S. district courts71 dictates the counties which fall

in each district and the locations at which courts may be held. Congress might choose to allocate

judgeships among the divisions in a given district, which would limit the locations where judges

may place their chambers. Congress might also consider specifying the location of chambers of

court of appeals judges, who may place their chambers anywhere within the circuit to which they

are appointed.72 Third, Congress might choose to offer the same pay to every judge within a given

district or circuit. Doing so, particularly for circuit judges, may limit the effectiveness of locality

pay because the geographical size of some of the circuits is so large. Fourth, Congress might

adopt a form of locality pay that is not tied directly to the Office of Personnel Management’s

Federal Judicial Center, “Federal Judicial History: Salaries U.S. District Court by State.” Available at

http://www.fjc.gov/history/home.nsf/page/salaries_USDC_states. Illinois added an Eastern District in 1905 (33 Stat.

992) and Congress reorganized the federal judicial districts into their current configuration of Northern, Central, and

Southern Districts in 1978 (92 Stat. 883).

28 U.S.C. § 134 (c) reads: “If the public interest and the nature of the business of a district court require that a district

judge should maintain his abode at or near a particular place for holding court in the district or within a particular part

of the district the judicial council of the circuit may so declare and may make an appropriate order. If the district judges

of such a district are unable to agree as to which of them shall maintain his abode at or near the place or within the area

specified in such an order the judicial council of the circuit may decide which of them shall do so.”

Office of Personnel Management, “Locality Pay Area Definitions.” Available at http://www.opm.gov/oca/07tables/

locdef.asp.

28 U.S.C. §§ 81-131.

28 U.S.C. § 44 (c) imposes two restrictions on the residence (not the location of chambers) of judges of the courts of

appeals: that they reside within the circuit (or, in the case of the D.C. Circuit Court of Appeals and the Court of

Appeals for the Federal Circuit, within 50 miles of the District of Columbia) and that “there shall be at least one circuit

judge in regular active service appointed from the residents of each state in that circuit.”

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locality pay structure and better reflects the boundaries of judicial districts and the divisions

within those districts.

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Federal judges who resign forgo judicial retirement, and it may be the case that candidates for

federal judgeships decline the opportunity to be nominated, in part, because the salary and other

compensation offered to federal judges cannot equal those available to lawyers who remain in

private practice. If Congress wishes to address this issue, it might consider altering how federal

judges qualify for judicial retirement.

Judicial retirement is available to federal judges who meet the criteria of the Rule of 80 and

entitles federal judges to an annuity equal to their salary at the time of their retirement when they

depart active duty. Judges who take senior status continue to receive the cost-of-living

adjustments Congress authorizes for active federal judges; since 1989, senior status judges have

had to handle a caseload (or, since 1996, comparable administrative work) equal to that of onefourth of the work of active judges in a given district or circuit in order to remain on senior

status.73

The retirement provisions for federal judges are generous relative to those for other federal

government positions in that very few other federal government positions offer a retiree with as

few as 10 years of service an annuity equal to the employees’ salary upon retirement.74 Any offer

less generous to federal judges might discourage federal judges from departing the bench while

they are still healthy; Congress first enacted judicial retirement provisions to encourage judges to

depart while they retained their health.75 Any other provision (e.g., a mandatory retirement age for

federal judges) would violate the Constitution’s provision that judges may serve “during Good

Behaviour” and may only lose their positions after impeachment by the House and conviction by

the Senate.

Current retirement provisions may be seen as generous from the perspective of judges who have

qualified for them, but may be seen as difficult to attain for federal judges who face decisions

about their financial futures before they are eligible for retirement or senior status. Judge Paul G.

Cassell, who resigned from the U.S. District Court for the District of Utah in 2007, noted the

issue of judicial pay in his resignation letter:

I would like to ensure that my children will have the same educational opportunities that I

had. How to achieve that within the constraints on current judicial pay is more than a

difficult task. My wife and I have concluded that we may not be able to do what we have

always planned to do unless I make some changes.76

28 U.S.C. § 371. The 1989 amendments can be found at P.L. 101-194, 103 Stat. 1770 (November 30, 1989); the

1996 amendments can be found at P.L. 104-317, 110 Stat. 3851 (October 19, 1996).

For a comparison to the retirement benefits of members of Congress, see CRS Report RL30631, Retirement Benefits

for Members of Congress, by (name redacted).

See, e.g., Artemus Ward, Deciding to Leave: The Politics of Retirements from the United States Supreme Court

(Albany: State University of New York Press), p. 73. The first retirement provision for Supreme Court justices was part

of the larger Judiciary Act of 1869 (16 Stat. 44, April 10, 1869).

Letter from Judge Paul G. Cassell, U.S. District Court for the District of Utah, to President George W. Bush,

September 21, 2007. Accessed at http://sentencing.typepad.com/sentencing_law_and_policy/files/

(continued...)

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If Congress were concerned that potential federal judges bypass the opportunity to serve as judges

due to financial concerns, it could allow federal judges to earn partial retirement after serving a

certain period of time. The current system provides judicial retirement under an “all-or-nothing”

premise: judges either qualify for judicial retirement, at the equivalent of full salary, or they do

not. Congress may consider allowing federal judges to receive a percentage of their annual salary

if they choose to resign or retire before qualifying for the Rule of 80. Doing so might increase the

number of people who express interest in serving as federal judges, but might also increase the

number of judges who depart office in mid-or late-career to seek additional income from a job

elsewhere in the federal government, in the private sector, or in academia.

Of the legislation currently pending in Congress, H.R. 3753, as ordered reported by the House

Judiciary Committee, makes several changes to the system of judicial retirement; none of the

other pending pieces of legislation change judicial retirement provisions. While leaving in place

the “Rule of 80” for judges to take senior status, H.R. 3753 and S. 1638 would require federal

judges to meet a new “Rule of 84” if they wished to retire. The Rule of 84 works much like the

Rule of 80, as federal judges’ age and years of service would have to add to 84 (starting with 67

years of age and 17 years of service, ranging to 72 years of age and 12 years of service) in order

to retire and receive an annuity equal to the salary they were receiving at the time they retired.

Under S. 1638 and H.R. 3753, federal judges who retire and find other employment would have

their annuities reduced if their earned income exceeds their annuity; for every $2 their earned

income exceeds their annuity each year, the annuity would be reduced by $1. This reduction

would stop once it had reached 67%, so all retired federal judges would receive at least 33% of

their annuity.

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Under the Judicial Survivors’ Annuities System (JSAS), “a judge’s eligible spouse, former

spouse, and/or dependent children are entitled to a survivor’s annuity if a judge dies while in

office or while receiving retirement compensation.”77 As of 1999, active and senior status judges

contributed 2.2% of their salary, and retired judges contributed 3.5% of their retirement annuity,

to the JSAS if they elected to participate.78 Judges who do not elect to participate receive no

survivor benefit. A judge’s survivors are eligible for an annuity between 25% and 50% of the

judge’s average annual salary, depending on how long the judge participated in the JSAS.

If Congress elects to consider revising the JSAS system, it might consider the survivor benefits

available to other federal employees under FERS and CSRS, and the contributions made by

employees under those programs, as a starting point. Federal employees covered by FERS do not

elect to participate and do not pay any salary to qualify for survivor benefits. Covered federal

employees under FERS and CSRS, however, make contributions to retirement annuities and to

any optional retirement savings (including the Thrift Savings Plan, or TSP).79

(...continued)

cassell_presidentresign920fix.rtf.

Administrative Office of the U.S. Courts, Senior Status and Retirement for Article III Judges, Judges Information

Series No. 4 (Washington: Administrative Office of the U.S. Courts, April 1999), p. 27.

28 U.S.C. § 376 (b)(1).

Specifically, current federal employees covered by the Federal Employees Retirement System (FERS) have a

survivor benefit equal to 50% of their annual basic pay plus a lump sum payment ($27,461 in 2007; the value is

(continued...)

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The Ethics Reform Act of 1989 imposed limits on the amount of outside income federal judges

may earn.80 The Ethics Reform Act limits government officials whose position is classified above

GS-15 of the General Schedule (or, for positions outside the General Schedule, those positions

where the base pay equals or exceeds 120% of the minimum pay for GS-15) from having outside

earned income exceeding “15 percent of the annual rate of basic pay for Level II of the Executive

Schedule.”81 In 2008, federal employees covered by this provision, including federal judges, may

earn no more than $25,830 in outside income.82 Federal officials, including federal judges, are

also not permitted to receive honoraria for speeches, appearances, or articles. Federal judges are

also expected to comply with the Code of Judicial Conduct. In particular, judges are permitted to

engage in extra-judicial activities that improve the administration of justice, but are expected to

avoid extra-judicial activities that may create risk of conflict with judicial duties. Perhaps most

relevant, the Code of Judicial Conduct creates an expectation that judges regularly report outside

compensation for law-related and extra-judicial activities.83

Before 1989, there was no restriction on the amount of outside earned income federal judges

could earn. This freedom may have allowed federal judges to supplement their salaries, but it also

caused considerable controversy. Controversy surrounding outside income adversely affected the

unsuccessful nomination of Abe Fortas to be Chief Justice in 1968 and played a secondary role in

the failed nomination of Clement Haynsworth to be an Associate Justice of the Supreme Court in

1969.84

Congress might choose to consider altering the limits on how much outside income federal judges

may earn. Easing the limits might encourage federal judges to remain in active service for longer

periods of time and may encourage individuals to serve in the federal judiciary who were

otherwise reluctant to do so.

(...continued)

adjusted annually at the same rate the Consumer Price Index changes). Surviving spouses of federal employees with at

least 10 years of service receive a lump sum and an annuity equal to 50% of the annuity that the employee has earned at

the time of his or her death. Retired federal employees who have joint and survivor annuities may choose to reduce

their annuities by 10% in order to guarantee a survivor benefit equal to 50% of their annuity (before the 10% reduction)

should they die before their spouses. Retired federal employees may also choose to reduce their annuities by 5% in

order to guarantee a survivor benefit equal to 25% of their annuity (before the 5% reduction). Federal employees hired

into permanent federal employment on or after January 1, 1984, are covered by FERS, as are employees working

before that date who opted to be covered by FERS; different retirement benefits apply to federal employees covered by

the Civil Service Retirement System (CSRS). CRS Report RS21029, Survivor Benefits for Families of Civilian Federal

Employees and Retirees, by (name redacted).

The outside earned income restrictions of the Ethics Reform Act do not apply to Supreme Court justices. S. 1638, as

reported by the Senate Judiciary Committee, would apply those limits to Supreme Court justices.

5 U.S.C. App. § 501(a). Federal judges who have retired from active service may receive income from teaching that

is not subject to the 15% limitation. See 5 U.S.C. App. § 502(b).

Several forms of compensation, including deferred compensation and funds received from investments that do not

require “significant personal services,” are not considered to be “outside income.” See “Commentary” on 5 U.S.C.

App. §§ 501-505 at http://www.uscourts.gov/library/conduct_outsideemployment.html.

Code of Judicial Conduct for United States Judges. Available at http://www.uscourts.gov/guide/vol2/ch1.html.

John P. Frank, “Conflict of Interest and U.S. Supreme Court Justices,” The American Journal of Comparative Law,

vol. 18, no. 4 (Autumn 1970), pp. 753-759.

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Congress might also choose to leave the restrictions on outside income in place. It does not

appear that the imposition of outside income limits in 1989 caused federal judges to depart in

numbers that exceeded historical patterns. According to the data presented in Figures 2 and 3,

above, imposition of the restrictions on outside income did not appear to affect the number of

judges who resigned or the number of judges who retired rather than taking senior status. The

proportion of judges who left active service by resignation was lower between 1989 and 1992

than between 1985 and 1988; the proportion of judges who retired rather than taking senior status

rose slightly between 1985-1988 and 1989-1992 (to 5.41% from 4.95%) following enactment of

the outside income limits in the Ethics Reform Act of 1989.

S. 1638, as reported by the Senate Judiciary Committee, would limit the reimbursable seminarrelated travel for federal judges to $2,000 per trip and $20,000 per year, with exceptions for

events approved by the State Department and those sponsored by the federal government, state

governments (not including public educational institutions), bar associations, and the National

Judicial College. S. 1638 would also prohibit the acceptance of honorary memberships valued at

more than $50 per year, and apply the regulations of the Judicial Conference on outside earned

income to justices of the U.S. Supreme Court.

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The Ethics Reform Act of 1989 created the Citizens’ Commission on Public Service and

Compensation that was designed to replace the Quadrennial Commission (which was composed

of individuals from the private sector who recommended salary levels for Members of Congress,

federal judges, and several executive branch officials).85 The Citizens’ Commission was to consist

of 11 private citizens who would meet once every four years and recommend to the President the

rates of pay for Members of Congress, the Vice President, Executive Schedule Level II

employees, federal judges and justices, and governors of the Federal Reserve.86 The President was

to review the recommendations of the commission and then transmit his own recommendations,

which would be based on what “the President considers to be fair and reasonable in light of the

Commission’s report and recommendations, the prevailing market value of the services rendered

in the offices and positions involved, the overall economic condition of the country, and the fiscal

condition of the Federal Government.”87 Those recommendations would then be considered by

Congress. This process was intended to augment the method by which annual pay adjustments are

made (the December-to-December change in the Employment Cost Index, less 0.5%).

The Citizens’ Commission on Public Service and Compensation, however, has never met.88

Accordingly, neither the President nor Congress has had the recommendations of the Citizens’

Commission to structure discussion on salary for certain federal employees (including federal

The Quadrennial Commission was created in 1967. One of the primary differences between the system in place

between 1967 and 1989 and the Citizens’ Commission was that, in the earlier arrangement, the recommendations made

by the President (after reviewing the Quadrennial Commission’s recommendations) went into effect unless Congress

stopped them from doing so. By contrast, recommendations made by the President after reviewing the Citizens’

Commission recommendations would go into effect only if Congress approved them.

2 U.S.C. § 356.

2 U.S.C. § 358 (1).

Congress never appointed its members to the commission and no money has been appropriated for the Commission.

Letter from L. Ralph Meacham, director, Administrative Office of the U.S. Courts, to Paul Volcker, chairman, National

Commission on Public Service, June 14, 2002. Available at http://www.uscourts.gov/newsroom/Volcker.pdf.

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judges). Congress may wish to convene the Citizens’ Commission to guide its deliberations on

judicial salaries and the salaries of other federal officials. If Congress were to convene the

Citizens’ Commission, salary recommendations would be regularly presented to Congress by the

President, with the intent of regular increases in salary. In a 2002 letter to Paul Volcker, chairman

of the National Commission on Public Service, L. Ralph Meacham, director of the Administrative

Office of the U.S. Courts, argued that Congress and the President intended for the Citizens’

Commission, created as part of the Ethics Reform Act of 1989, to “provide top government

officials with regular increases that would alleviate the future need for major ‘catch up’

adjustments of the type enacted in 1989.”89 Meacham further argued that the failure of the

commission to meet meant that “Judges (as well as other high-level government officials) have

received only four cost-of-living salary adjustments since January 1993. What this means is that

since 1993 [until 2002], the annual cost-of-living salary adjustments for these officials have

averaged only about one percent.”90

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Congress might also choose to consider changing how cost-of-living adjustments are made to

judges’ salaries. The annual automatic recommendation for salaries of Members of Congress and

federal judges is the December-to-December change in the Employment Cost Index for privatesector wages, reduced by 0.5%. In addition, the rate of adjustment for judicial, congressional, and

executive officials whose salaries are covered by the Ethics Reform Act of 1989 can be no greater

than the rate of adjustment for General Schedule (GS) employees.91 Under current law, Congress

must enact legislation each year to allow judges’ salaries to change.92 The salaries of Members of

Congress, on the other hand, increase unless Congress acts to prevent the scheduled increase from

taking effect.93 Congress, however, might consider changing the law, to allow judges’ salaries to

increase automatically without the requirement of an authorization by Congress for each such

increase.

Doing so might allow judicial salaries to increase more frequently than they have since the

current method of recommending and adopting judicial and congressional salaries was

implemented in 1989. Changing the mechanism by which judicial salaries are adjusted to account

for changes in cost-of-living, however, might not translate into more frequent increases in judicial

salary, if Congress chooses to continue the practice of pay parity between judicial and

congressional salaries. Should Congress choose to continue this practice, and should Congress

occasionally choose to reject recommended adjustments to congressional and judicial salaries,

judicial salaries will likely continue to fall relative to the salaries of private-sector workers.

H.R. 3753, as reported by the House Judiciary Committee, and S. 1638, as reported by the Senate

Judiciary Committee, would raise judicial salaries each year by the base rate increase given to

General Schedule employees. Doing so would effectively automate the process by which federal

judges currently receive cost-of-living adjustments, as the default adjustment to the General

Ibid.

Ibid. Parentheses in original.

P.L. 101-194, 103 Stat. 1769 (November 30, 1989).

P.L. 97-92 § 140 , 95 Stat. 1200 (December 15, 1981), amended by P.L. 107-77, 115 Stat. 803 (November 28, 2001).

See 28 U.S.C. § 461 note.

P.L. 101-194, 103 Stat. 1769. (November 30, 1989).

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Schedule is the December-to-December change in the Employment Cost Index, less 0.5%,94

though the President may adjust this recommendation.95

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Four pieces of legislation pending in the 110th Congress deal with judicial salary. S. 197, passed

by the Senate on January 8, 2007, and pending before the House, authorizes the enactment of the

1.7% increase in judicial salary that was recommended under the procedures outlined in the

Ethics Reform Act of 1989.

Three other pending pieces of legislation—S. 1638, S. 2353, and H.R. 3753 would provide

federal judges with much larger raises. Table 3 provides a side-by-side comparison of the three

pieces of legislation.

Side Comparison of Current Federal Judicial Salaries and Proposed

Salaries Under S. 1638, S. 2353, and H.R. 3753 (110th Congress)

Table 3. Side-By-

S. 2353

H.R. 3753 and S. 1638

Current

(% Increase over

Judges

Salary

Current)

District Court Judges

$169,300

$197,200 (16.5%)

$218,000 (28.8%)

$169,300

$197,200 (16.5%)

$218,000 (28.8%)

$179,500

$208,100

$217,400

$209,100 (16.5%)

$242,400 (16.5%)

$253,300 (16.5%)

$231,100 (28.7%)

$267,900 (28.7%)

$279,900 (28.7%)

Court of International Trade

Judges

Court of Appeals Judges

Supreme Court Associate Justices

Chief Justice

Data for current salaries provided by the Federal Judicial Center, available at http://www.fjc.gov/history/

home.nsf/page/salaries_bdy. Data for proposed salaries from text of legislation. Percentage increases for S. 1638

Source:

and H.R. 3753 vary across positions due to rounding. The salary levels were established relative to 2007

salaries, which increased by 2.5% in 2008.

If adopted, the new salary levels proposed by S. 1638 and H.R. 3753 would be the highest real

salaries federal judges have received since at least 1913. In 1969, currently the year with the

highest real salaries for federal judges since at least 1913, district court judges received real salary

of $210,570; court of appeals judges received a real salary of $222,018.96 Without endorsing any

specific proposals, the Bush Administration has indicated its support for raising judicial salaries.97

5 U.S.C. § 5303 (a).

5 U.S.C. § 5303 (b).

In 1969, the real salary of the associate justices of the Supreme Court was $310,821; for the Chief Justice of the

Supreme Court, the real salary was $322,725. As noted above, these values are adjusted to reflect that judicial salaries

were changed effective March 1, 1969; these values report the amount of salary a federal judge serving in active status

in 1969 would have received in salary in the 1969 calendar year. Comparisons to the real values outlined in Table 1

should keep in mind that the real values may change depending on the effective date of any legislation on judicial

salary enacted by Congress.

Letter from Rob Portman, director, Office of Management and Budget, to Rep. John Conyers, chair, House Judiciary

(continued...)

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S. 2353, which has been referred to the Senate Judiciary Committee, provides immediate

increases in salary to federal judges; however, it makes no other changes to the compensation

practices for federal judges. H.R. 3753, as ordered reported by the House Judiciary Committee,

and S. 1638, as reported by the Senate Judiciary Committee,98 allow for annual salary adjustments

for federal judges equal to the change in the base rate of pay for General Schedule employees.

H.R. 3753 and S. 1638 would also change the workload of judges in senior status, requiring that

they perform the equivalent of four months of the work of an active judge in a given year,

whereas the current requirement is a work equivalent of three months a year. H.R. 3753 and S.

1638 also include two changes to retirement (as opposed to senior status). While federal judges

will still be able to take senior status under the Rule of 80, eligibility to retire will be governed by

a new Rule of 84, where age and years of service, starting with 67 years old and 17 years of

service, must add to 84 for a federal judge to retire and receive an annuity equal to their salary at

time of retirement. Judges who retire and whose earned income after retirement exceeds the

amount of their retirement annuity would find that annuity reduced by $1 for every $2 they earn

above the level of their annuity. This reduction could affect no more than 67% of their annuity,

and the calculation is made annually, so the annuity could be restored to its full value if a retired

judge stops earning outside income in excess of his or her annuity. S. 1638 also includes a

provision that restricts the reimbursable seminar-related travel for federal judges to $2,000 per

trip and $20,000 per year (these values would be indexed to inflation), with exceptions for events

approved by the State Department and those sponsored by the federal government, state

governments (not including public educational institutions), bar associations, and the National

Judicial College. S. 1638 also limits the acceptance of honorary memberships to those valued at

no more than $50 per year and applies the regulations of the Judicial Conference on outside

earned income to justices of the U.S. Supreme Court.

(...continued)

Committee, April 19, 2007. Available at http://www.uscourts.gov/judicialcompensation/OMBletter.pdf.

See U.S. Congress, Senate Committee on the Judiciary, Federal Judicial Salary Restoration Act of 2008, report to

accompany S. 1638, 110th Cong., 2nd sess., S.Rept. 110-277 (Washington: GPO, 2008), 22 p.

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ǰȱȱȱ ȱǰȱȱǯǯȱȱȱǰȱŗşŞśȬŘŖŖŝȱ

Number of Active Judges Departing Via:

Senior Status

Death

Resignation

Retirement

Otherd

Year

Judgeshipsa

Vacanciesb

Total Active Judgesc

1985

748

102

646

1986

748

693

1987

748

693

1988

748

700

1989

748

708

1990

833

772

1991

833

125

708

1992

833

131

702

1993

833

109

724

1994

833

100

733

1995

833

763

1996

831

781

1997

830

737

1998

830

744

1999

839

780

2000

849

773

2001

849

769

2002

849

752

2003

868

808

2004

866

821

2005

866

829

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2006

866

817

2007

866

810

Total

—

695

CRS analysis of data provided by the Administrative Office of U.S. Courts and the Federal Judicial Center.

a. Number of judgeships derived from data provided by the Administrative Office of the U.S. Courts.

b. Number of vacancies as of January 1 of each year.

c. Number of active judges was calculated by subtracting number of vacancies from number of authorized judgeships.

d. “Other” departures include judges who were impeached and convicted, and judges whose recess appointment expired without Senate confirmation. Elevations to

other positions in the judiciary, including to the Supreme Court, were not considered departures.

Source:

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Year

District Court Judges

Nominal Salary

Real Salarye

Court of Appeals Judges

Nominal Salary

Real Salarye

Average Wage Earner

Nominal Salary

Real Salarye

1955

$22,500

$169,254

$25,500

$191,821

$3,301

$24,835

1956

$22,500

$166,765

$25,500

$189,000

$3,532

$26,181

1957

$22,500

$161,424

$25,500

$182,947

$3,642

$26,127

1958

$22,500

$156,955

$25,500

$177,882

$3,674

$25,628

1959

$22,500

$155,876

$25,500

$176,660

$3,856

$26,712

1960

$22,500

$153,244

$25,500

$173,676

$4,007

$27,292

1961

$22,500

$151,706

$25,500

$171,933

$4,087

$27,555

1962

$22,500

$150,199

$25,500

$170,225

$4,291

$28,647

1963

$22,500

$148,235

$25,500

$168,000

$4,397

$28,966

1964

$30,000

$195,096

$33,000

$214,606

$4,576

$29,761

1965

$30,000

$192,000

$33,000

$211,200

$4,659

$29,816

1966

$30,000

$186,666

$33,000

$205,333

$4,938

$30,728

1967

$30,000

$181,078

$33,000

$199,186

$5,213

$31,468

1968

$30,000

$173,793

$33,000

$191,172

$5,572

$32,278

1969

$38,333

$210,570

$40,417

$222,018

$5,894

$32,376

1970

$40,000

$207,835

$42,500

$220,825

$6,186

$32,143

1971

$40,000

$199,112

$42,500

$211,556

$6,497

$32,341

1972

$40,000

$192,919

$42,500

$204,976

$7,134

$34,406

1973

$40,000

$181,622

$42,500

$192,973

$7,580

$34,418

1974

$40,000

$163,570

$42,500

$173,793

$8,031

$32,840

1975

$42,000

$157,383

$44,600

$167,126

$8,631

$32,342

1976

$44,000

$155,894

$46,800

$165,815

$9,226

$32,690

Ȭřŝȱ

Year

District Court Judges

Nominal Salary

Real Salarye

Court of Appeals Judges

Nominal Salary

Real Salarye

Average Wage Earner

Nominal Salary

Real Salarye

1977

$52,750

$175,485

$55,717

$183,356

$9,779

$32,183

1978

$57,500

$177,792

$60,700

$187,686

$10,556

$32,640

1979

$61,500

$170,777

$65,000

$180,496

$11,479

$31,877

1980

$67,100

$164,167

$70,900

$173,464

$12,513

$30,615

1981

$70,300

$155,913

$74,300

$164,784

$13,773

$30,546

1982

$73,100

$152,715

$77,300

$161,489

$14,531

$30,358

1983

$73,100

$147,962

$77,300

$156,463

$15,239

$30,846

1984

$76,000

$147,465

$80,400

$156,002

$16,135

$31,307

1985

$78,700

$147,453

$83,200

$155,884

$16,823

$31,519

1986

$78,700

$144,762

$83,200

$153,039

$17,322

$31,862

1987

$88,100

$156,007

$93,450

$165,481

$18,427

$32,630

1988

$89,500

$152,520

$95,000

$161,893

$19,334

$32,948

1989

$89,500

$145,510

$95,000

$154,452

$20,100

$32,678

1990

$96,600

$149,002

$102,500

$158,103

$21,028

$32,435

1991

$125,100

$185,170

$132,700

$196,419

$21,812

$32,285

1992

$129,500

$186,081

$137,300

$197,289

$22,935

$32,956

1993

$133,600

$186,393

$141,700

$197,694

$23,133

$32,274

1994

$133,600

$181,739

$141,700

$192,758

$23,754

$32,313

1995

$133,600

$176,731

$141,700

$187,446

$24,706

$32,682

1996

$133,600

$171,662

$141,700

$182,070

$25,914

$33,297

1997

$133,600

$167,812

$141,700

$177,986

$27,426

$34,449

1998

$136,700

$169,072

$145,000

$179,337

$28,861

$35,696

1999

$136,700

$165,418

$145,000

$175,462

$30,470

$36,871

2000

$141,300

$165,425

$149,900

$175,493

$32,155

$37,645

2001

$145,100

$165,174

$153,900

$175,191

$32,922

$37,476

2002

$150,000

$168,093

$159,100

$178,291

$33,252

$37,263

ȬřŞȱ

Year

District Court Judges

Nominal Salary

2003

2004

2005

2006

Median

Mean

$154,700

$158,100

$162,100

$165,200

$68,700

$76,957

Real Salarye

Court of Appeals Judges

Nominal Salary

Real Salarye

Average Wage Earner

Nominal Salary

Real Salarye

$169,497

$168,729

$167,329

$165,200

$167,047

$168,428

$164,000

$167,600

$171,800

$175,100

$72,600

$81,975

$34,065

$35,649

$36,953

$38,651

$13,143

$15,550

$37,323

$38,045

$38,145

$38,651

$32,299

$32,142

$179,687

$178,868

$177,342

$175,100

$178,139

$181,187

Judicial salary data provided by the Federal Judicial Center, available at http://www.fjc.gov/history/home.nsf/page/salaries_bdy. For specific dates of pay adjustments,

see http://www.uscourts.gov/salarychart.pdf. Average wage earner data provided by the National Average Wage Index, available at http://www.ssa.gov/OACT/COLA/

AWI.html. Adjustments for real salary data were made using the Bureau of Labor Statistics CPI Inflation Calculator, available at http://data.bls.gov/cgi-bin/cpicalc.pl. If judicial

salary changed during a year, the salaries were calculated based on the salary judges received for each portion of the year. This affects calculations for 1969, 1977, and 1987.

In 1987, for example, district court judges’ annual salary was $81,100 from January 1-March 1, and $89,500 from March 1 forward. A district court judge who worked for

the entire year would have received $88,100 in salary that year.

e. “Real” salaries are calculated in 2006 dollars. The nominal salary for district court judges in 2007 was $165,200, which translates to $160,625 in 2006 dollars. The

nominal salary for court of appeals judges in 2007 was $175,100, which translates to $170,251 in 2006 dollars.

Source:

Ȭřşȱ

ȱ¢Ǳȱȱ ȱȱȱȱȱ

ȱȱ ȱ

(name redacted)

Specialist on the Federal Judiciary

[redacted]@crs.loc.gov, 7-....

This report was written by Kevin M. Scott, formerly an Analyst on the Federal Judiciary at CRS. The listed

author updated the report and is available to answer questions concerning its contents.

ȱȱȱ

ŚŖȱ

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