January 2008

Be the Judge: Do We Pay Them Enough?

Salary restoration would help to ensure an impartial and quality judiciary

by WSBA President Stan Bastian

At our meeting in October 2007, the WSBA Board of Governors voted to support an initiative to secure “salary restoration” for the federal judiciary. If successful, this initiative will result in an immediate and substantial increase in pay for federal judges, which they clearly need and deserve. However, the concept of salary restoration means more than just a pay raise. The intent is to restore judicial pay to levels where once again a judicial appointment can be considered to be the capstone to a distinguished legal career. It should not be used as a stepping stone to a lucrative position in private practice.

Since 1969, the salaries of federal judges have significantly declined when adjusted for inflation; in fact, the decline is almost 25 percent. During the same time, the pay for the average American worker increased by approximately 19 percent. In many years, federal judges are not even given a cost-of-living increase. They were denied such increases in 1994, 1995, 1996, 1997, 1999, and 2007. Since 1993, the pay for most federal employees has increased by 61 percent and inflation has increased the cost of living by 36 percent. However, judicial pay has lagged far behind.

In 1969, a federal district court judge earned 20 percent more than a law school dean and about 30 percent more than a senior professor at a top law school. Currently, deans at some of the top law schools make twice as much as district court judges, and senior law professors at those same schools make nearly 50 percent more than the judges. In fact, federal trial judges now earn less than many law school graduates earn in their first year of private practice. It doesn’t make any sense that an inexperienced first-year associate at a top law firm can now make almost as much, if not more, than an experienced and seasoned federal trial judge.

Unfortunately, the workload for federal judges has increased almost as dramatically as their pay has decreased in real terms. Since 1960, the caseload for district court judges has climbed by almost 60 percent and the caseload for circuit court judges has increased by more than 200 percent. Clearly, our federal court judges are working harder for less pay, and just as clearly, this inequality needs to change.

The Board’s interest in this issue stems from one of the Bar Association’s core values, which is to support and foster a fair and impartial judiciary. Our system of government and the rights we enjoy as citizens depend on a strong, independent, fair, and impartial judiciary. However, this requires, at the very least, good judges. Unfortunately, low pay makes it increasingly difficult to attract and retain these judges. Low salaries force some judges to leave the bench and return to the higher compensation offered by the private sector. Many of the federal judges who have recently resigned or retired have indicated that financial considerations were a factor. Additionally, some lawyers who would be outstanding judges have no doubt chosen not to even seek appointment, because it would involve an unacceptable cut in pay. Either way, the system loses when good people choose not to serve.

The Federal Judicial Salary Restoration Act of 2007 (S. 1638) was introduced in the United States Senate several months ago and, if passed, the salary for a district court judge would be increased from $165,200 to $247,800. The salaries for circuit court judges would be increased to $262,700, associate justices of the U.S. Supreme Court would receive $304,500, and the salary for the Chief Justice would be set at $318,200. As president of this Bar Association, I have sent a letter to every member of the Washington State congressional delegation asking them to support this bill. We need your help, and I encourage all of you to write a similar letter.

P.S. I would like to thank and acknowledge the contribution of United States Magistrate Judge Mary Alice Theiler, who sent me the materials and information used to prepare this column. 

Stan Bastian can be reached at stanb@jdsalaw.com or 509-662-3685.