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Kennedy urges federal judicial pay raise in Senate committee testimony

[JURIST] US Supreme Court Justice Anthony Kennedy testified [transcript] before the appropriations subcommittee of the Senate Judiciary Committee [official website] on Wednesday on the topic of judicial pay, saying that low pay relative to private-sector jobs threatens the independence and integrity of the federal judiciary. While members of the Supreme Court rarely testify before appropriations committees, Kennedy said the "importance of judicial independence in our own time and in our constitutional history" led him to accept the invitation.

In his prepared remarks, Kennedy observed:

Despite the increase in workload, the real compensation of federal judges has diminished substantially over the years. Between 1969 and 2006, the real pay of district judges declined by about 25 percent. In the same period, the real pay of the average American worker increased by eighteen percent. The resulting disparity is a forty-three percent disadvantage to the district judges. If judges’ salaries had kept pace with the increase in the wages of the average American worker during this time period, the district judge salary would be $261,000. That salary is large compared to the average wages of citizens, but it is still far less than the salary a highly qualified individual in private practice or academia would give up to become a judge...

It is disquieting to hear from judges whose real compensation has fallen behind. Judges do not expect to become wealthy when they are appointed to the federal bench; they do expect, however, that Congress will protect the integrity of their position and provide a salary commensurate with the duties the office requires. For the judiciary to maintain its high level of expertise and qualifications, Congress needs to restore judicial pay to its historic position vis-à-vis average wages and the wages of the professional and academic community.

A failure to do so would mean that we will be unable to attract district judges who come from the most respected and prestigious segments of the practicing bar. One of the distinguishing marks of the Anglo-American legal tradition is that many of our judges are drawn from the highest ranks of the private bar. This is not the case in many other countries, where young law school graduates join the judicial civil service immediately after they complete their legal educations. Our tradition has been to rely upon a judiciary with substantial experience and demonstrated excellence. Private litigants depend on our judges to process complex legal matters with the skill, insight, and efficiency that come only with years of experience at the highest levels of the profession.

There are two present dangers to our maintaining a judiciary of the highest quality and competence: First, some of the most talented attorneys can no longer be persuaded to come to the bench; second, some of our most talented and experienced judges are electing to leave it...

Something is wrong when a judge’s law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before. These continuing gross disparities are of undoubted relevance. They are a material factor for the attorney who declines a judicial career or the judge who feels forced to leave it behind. The disparities pose a threat to the strength and integrity of the judicial branch...
In his 2006 year-end report on the federal judiciary [text, PDF; JURIST report], Chief Justice John Roberts called the failure to raise the pay of federal judges a "constitutional crisis." At the American Bar Association Mid-Year Meeting in Miami earlier this week, the ABA House of Delegates urged Congress to take immediate action to enact a substantial pay raise for the federal judiciary [press release]. AP has more.

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