One of the articles featured on DRI Today asks: “Where Have All the Judges Gone?” The article notes that so far this year, federal judges have been leaving the bench at a rate of one per week and that the number of federal judicial vacancies has doubled in the last three years. The article attributes the rise in judicial vacancies to a “host of factors” including Senate Republicans, the White House and “a dysfunctional Senate confirmation system.” While those are factors that might explain delays in filling federal judicial vacancies, the article misses the basic reason why many federal judges are leaving the bench. Put bluntly, it is their compensation. When second and third year associates in some of our country’s largest law firms earn more than many federal judges, it should come as no surprise that more and more of them are leaving the bench and turning to employment in the private sector.
Alexander Hamilton, in The Federalist No. 79 recognized: “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Federal judges have not received a raise in their base salary in well over a decade and also have been denied cost of living adjustments a number of times since then. Hamilton’s warning appears to be borne out by the spate of recent departures from the federal bench.
The Framers of our Constitution wanted to ensure the independence of federal judges through the provision of lifetime tenure. However, the Framers’ goal of judicial independence is being frustrated by the failure to provide adequate compensation to federal judges. Chief Justice Roberts in his 2006 Year-End Report on the Federal Judiciary observed that federal judges “accept difficult work, public criticism and even threats to their personal safety,” and while they may be willing to accept less than what could be earned in the private sector, “[t]hey can rightfully expect, however, to be treated more fairly than they have been.” Justice Roberts also warned in his 2006 Report: “If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers’ goal of a truly independent judiciary will be placed in serious jeopardy.” We are seeing Justice Roberts’ warning now being played out before our eyes.
So, what can you do to protect the independence of our federal judges? Write to your elected representatives in Washington, D.C. and advocate pay increases for them. The maintenance of judicial independence at both the state and federal levels requires your support. DRI, as the Voice of the Defense Bar, recognizes that our members have long been advocates of level playing fields and fairness to all parties in litigation. However, we must now also focus our attention on protecting the independence of our state and federal judges.
Later this month, DRI will publish a report from its Judicial Task Force entitled: “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.” That report discusses a number of challenges to judicial independence, and outlines possible solutions to those issues. The challenges to judicial independence caused by inadequate compensation and a politicized appointment process noted above are two of the issues addressed in that report. However, achieving those solutions require your involvement and support.
ABOUT THE AUTHOR
Steven M. Puiszis is a partner in the Chicago offices of Hinshaw & Culbertson LLP. He is a member of DRI’s Board of Directors, and is the Chair of DRI’s Judicial Task Force. He also is the editor of “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.”