On January 8, the Senate voted to de-link cost of living adjustments (COLAs) of judges from the pay received by Members of Congress. It is not clear whether this action was taken in response to Chief Justice John Roberts’ recent complaint about declining judicial salaries, which are statutorily linked to salaries of Members of Congress.
Whether judicial salaries continue to be linked to Members of Congress, or are (as Roberts prefers) linked in some fashion to salaries in the competitive market for equally capable attorneys, there will be important incentive effects in the judicial labor market. Failing to consider these incentive effects carefully guarantees unintended consequences.
S. 197, as introduced in the Senate and approved by voice vote reads as follows:
SECTION 1. AUTHORIZATION OF SALARY ADJUSTMENTS FOR FEDERAL JUSTICES AND JUDGES.
- In General.–Pursuant to section 140 of Public Law 97-92, justices and judges of the United States are authorized during fiscal year 2007 to receive a salary adjustment in accordance with section 461 of title 28, United States Code.
- Effective Date.–This Act shall take effect as of January 1, 2007.
About section 140 of Public Law 97-92, the Congressional Research Service says: Approved December 15, 1981, Section 140 of P.L. 97-92 provides that the obligation or expenditure of funds to increase the salary of Article III judges is prohibited without a specific congressional authorization.3 This provision has been applied only with regard to the so-called automatic annual pay adjustments. It was not applied to the implementation of recommendations pursuant to the quadrennial Commission on Executive, Legislative, and Judicial Salaries (2 U.S.C 351). Since 1981, the judges’ salaries have been adjusted at the same rate as those for Members of Congress. Section 625 of P.L. 107-77 (November 28, 2001) makes permanent P.L. 97-92, Section 140.
28 U.S.C. 461 reads as follows:
Subject to paragraph (2), effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5303 of title 5 in the rates of pay under the General Schedule (except as provided in subsection (b)), each salary rate which is subject to adjustment under this section shall be adjusted by an amount, rounded to the nearest multiple of $100 (or if midway between multiples of $100, to the next higher multiple of $100) equal to the percentage of such salary rate which corresponds to the most recent percentage change in the ECI (relative to the date described in the next sentence), as determined under section 704(a)(1) of the Ethics Reform Act of 1989. The appropriate date under this sentence is the first day of the fiscal year in which such adjustment in the rates of pay under the General Schedule takes effect.
In no event shall the percentage adjustment taking effect under paragraph (1) in any calendar year (before rounding), in any salary rate, exceed the percentage adjustment taking effect in such calendar year under section 5303 of title 5 in the rates of pay under the General Schedule.
Subsection (a) shall not apply to the extent it would reduce the salary of any individual whose compensation may not, under section 1 of article III of the Constitution of the United States, be diminished during such individual’s continuance in office.
The language in 28 U.S.C. 461 is effectively identical to the language in S. 2725 (Clinton et al., 109th Congress) that would have embedded a COLA into the federal minimum wage.
P.L 97-92 sec. 140 linked judicial salaries to those of Members of Congress, which is precisely what CJ Roberts objected to in his 2006 end of year report. He asserted that judges (and prospective judges) could earn vastly greater salaries in privatw practice, or as law school deans and professors. His stated concern was that if judicial salaries did not rise to approximate these levels, the judiciary would be increasingly populated by those who are either independently wealthy or for whom judicial salaries constitute a significant increase over their value as attorneys.
Of course, the same could be said about Members of Congress. The Senate has long been accused of being a “millionaire’s club” (see here, here and here). Some congressmen are attorneys who could earn much more money outside of government, and sometimes they choose to do so (or the voters make that choice for them).
We analyzed Roberts’ case and found it unpersuasive on several grounds. We now have a new concern. To illustrate it, imagine that Roberts got his wish and judicial salaries rose to roughly approximate those in private practice or at premier law schools. Those salaries could easily be five or 10 times the salaries of Members of Congress. Surely some Members might be more inclined to think that a judicial appointment is “the capstone of a distinguished career” (Roberts, p. 6).
Both Left and Right have alleged that the judiciary has become increasingly politicized in recent years. How much more politicized would it get if Members of Congress saw significant personal financial gain in trading crucial votes for their own judicial nominations?