Are Federal Judges’ Salaries too Low?

One thing that federal judges across the political spectrum agree on is that they deserve a raise. According to Chief Justice John Roberts’ 2005 Year End Report on the Federal Judiciary, low pay is a “threat to judicial independence” because “[i]f judges’ salaries are too low, judges effectively serve for a term dictated by their financial position rather than for life.” This debate will no doubt be rekindled by superstar Judge J. Michael Luttig’s recent resignation to take a job as General Counsel at Boeing. Indeed, Judge Luttig cited the need to pay for his children’s college tuition as one of several factors behind his decision.

I don’t blame judges for wanting higher pay. But there is little evidence that the federal judiciary is losing good people because the pay is too low. Currently, federal judicial salaries are as follows:

Judges of specialized federal courts earn salaries comparable to those of appellate and district judges (see link above). At these pay levels, few federal judges are likely to be living from hand to mouth. Even so, it is certainly true that most of them could earn far more money in the private sector.

But it is not true that the federal judiciary is losing any significant number of good judges as a result. Although I do not have systematic data on this, anecdotal evidence and personal experience strongly suggest that there is no shortage of outstanding lawyers who would love to become federal judges, including many who would have to take a big pay cut as a result. Brett Kavanaugh (current D.C. Circuit nominee who was a partner at a major firm before entering government service) and C.J. Roberts himself (a partner at powerhouse D.C. law firm Hogan & Hartson before becoming a circuit judge) are two of many examples.

What about the danger of good judges leaving the federal judiciary prematurely in order to make money? Here, we do have some data. Chief Justice Roberts’ report (link above) indicates that 92 federal judges left the bench between 1990 and 2005. Roberts claims that this is an alarmingly high number. However, there are currently some 678 federal district judges, 179 circuit judges, and 9 supreme court justices, for a total of 866. Justice Roberts’ figures indicate that about 6 to 7 of them leave the bench each year. That is less than a 1% annual attrition rate (even if we factor in the fact that the judiciary was smaller in the 90s than today)! Very few, if any, other occupations have such low turnover. This suggests that being a federal judge is an extremely attractive job, notwithstanding any financial hardship.

Moreover, the above analysis assumes that all 92 judges resigned because of dissatisfaction with pay. As Roberts notes, however, 71 of them resigned only after reaching retirement age (he actually emphasizes the 21 who resigned early, but the other side of the equation is surely more significant). It is plausible to assume that many if not most of these resignations were due to illness, old age, or a desire to enjoy one’s retirement years in peace. Federal judges who have reached the age of 65 and have served at least 15 years have the right to retire while still retaining their full salary. This creates a strong incentive to retire and cash in once the age of 65 is reached.

Roberts does note that 59 of the 92 judges who resigned went into private practice, which is a point in favor of his argument. However, even if all 59 left for financial reasons (an implausible assumption), this is still only a tiny fraction of the total number of judges (about 0.7% per year). Finally, it is worth noting that I have assumed that the Chief Justice was only counting Supreme Court, court of appeals, and district judges. If the figure also includes resignations by judges of specialized courts, then it would be a much smaller fraction of the total. Unfortunately, the report is unclear on this point.

Despite the Luttig resignation, there is little if any evidence that the quality of the federal judiciary is suffering because pay is too low. Nevertheless, there are two potential caveats to this conclusion. First, it is theoretically possible that a large pay increase would attract at least a few more superstar types comparable to Luttig. If so, it might be worth it, given the disproportionate impact a superstar can have on the quality of judicial precedent. However, I am somewhat skeptical that this conjecture is correct. Second, I think there is a good case for making judicial pay inflation-adjusted and for giving cost of living adjustments to judges located in particularly expensive areas such as New York or San Francisco.

Update: My original post missed a small pay increase for federal judges enacted in January of this year. The salary figures in the post have been edited to reflect the changes. Hat tip to Benjamin Shatz.