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Friday, Jan. 03, 2003

Last year, when I read Chief Justice William Rehnquist's annual report on the state of the federal judiciary, I yawned, and had a vision of how he might draw attention to his annual message - which, it seems, everyone else generally ignores.

This year, in his Annual Report, the Chief Justice is once again striking familiar chords. Yet this year, there is one note that has received special emphasis. And by stressing one issue above all others, Rehnquist appears to be sending a subtle political message to Republicans about the judicial branch.

Report on the Federal Judiciary - Request for A Pay Raise

"The 2002 Year-End Report on the Federal Judiciary is my 17th," the Chief said in a prepared statement released New Year's Day. "As I look back on these reports, I am struck by the number of issues that seem regularly to crop up, or perhaps they never go away - judicial vacancies, the need for additional judgeships, judges' salaries, judicial appropriations."

But of all these, there is one problem in particular that Rehnquist has repeatedly described as "the most pressing issue." It is the need for an increase in pay for federal judges.

Not only did Rehnquist say he was "beating [this issue like] a dead horse," but this year, he actually took the matter directly to White House. Remarkably, he seems to have gotten Mr. Bush's attention, and I'm sure it is not because he whacked the President with the cane he been using since his recent knee surgery.

Rather, I suspect that the Chief Justice explained the facts of judicial life to the President in political terms. The evidence of his persuasiveness came in the form of an announcement from the White House, a few days later, that the President was "urg[ing] Congress to specifically authorize a pay increase for federal judges."

Obviously, Rehnquist got quick results - and got attention paid to the issue at the top of his agenda. But how?

Fact Of Judicial Life: Federal Judges Have Always Been Underpaid

To understand how Rehnquist persuaded the President to take judicial salaries seriously, a bit of background is in order.

Federal district judges currently are paid annual salaries of $150,000. (Federal magistrate and bankruptcy judges are paid ninety-two percent of that figure.) Meanwhile, federal appeals court judges are paid $159,100; associate Supreme Court Justices receive $184,400; and the Chief Justice himself gets $192,600 (since he has additional administrative responsibilities).

For purposes of comparison, the President of the United States is paid an annual salary of $400,000 and the Vice President, $175,400. In addition, members of the Senate and House leadership are paid $161,200, except for the Speaker of the House, who receives $186,300. Representatives and Senators are paid $150,000.

According to the latest published figures by the U.S. Department of Labor (for 2001), the average American's annual pay is $36,214. The average pay of all professionals (including lawyers) is $58,758. The New England School of Law has further crunched the income numbers relating to lawyers, and reports their medium annual income in the $100,000 range.

More relevant, however, is a statistic from the Association of Trial Lawyers about its own members' salaries - for trial lawyers are the pool from which judges are typically selected. The Association reports that as of August 2002, the average annual income of its members is $260,000.

Thus, for a trial lawyer to switch jobs and become a federal district judge necessitates, on average, a pay cut of over $100,000. And given that we don't want the average - but rather, the best - trial lawyer to become that judge, the problem is even worse than it seems.

Of course, it has always been a financial sacrifice to serve in the federal judiciary. Chief Justice Rehnquist closed his testimony before the Volcker Commission with a quote from former Chief Justice Oliver Ellsworth, upon his retirement in 1800 due to poor health: "Tho' our country pays badly, its is the only one in the world worth working for."

But that reality still leaves some important questions: How much of a financial sacrifice should judges be asked to make, and what will the consequences be if the sacrifice is too great?

Rehnquist's Prior Predication About the Result If We Underpay Federal Judges

Last year, the Chief Justice argued that if the financial sacrifice was too great, the best and brightest of private practice would not be interested in the federal bench. He feared that, in turn, this could result in our federal judiciary becoming like that of many European countries - a body of second-rate bureaucrats who have been on the government payroll for their entire careers.

There is good reason that the Chief's concern fell on deaf ears in the 107th Congress, which was controlled by the Democrats. It was anything but persuasive.

In fact, it was ironic for Rehnquist to express concern that federal government itself might be less than an ideal breeding ground for federal judges. After all, Rehnquist himself had been an Assistant Attorney General in the Department of Justice before being nominated for a seat on the Court. Similarly, his key conservative colleagues -- Antonin Scalia and Clarence Thomas - had spent virtually their entire professional careers on the federal payroll.

Equally unpersuasive was Rehnquist's concern that without better pay, the federal judiciary might be denied those lawyers who represent the cream of the crop - lawyers such as Louis Brandeis, known as the people's attorney before Woodrow Wilson appointed him to the Supreme Court in 1916; Thurgood Marshall, who had been the NAACP's top lawyer before being sent to the high court by Lyndon Johnson in 1967; and Byron White, who was appointed by John Kennedy in 1962.

Rehnquist clearly picked his examples with care - preaching to a Democratic Congress, he chose good Democrats as his examples. But these examples hardly support his argument - that the federal judiciary needs to pay more in order to attract lawyers from private practice.

Thurgood Marshall had been a sitting judge of the U.S. Court of Appeals, and then Solicitor General, before elevated to the high Court. Byron White had been the deputy Attorney General when selected by Kennedy. And no lawyer ever did more significant pro bono work than Louis Brandeis. The idea that money would have tempted any of these men away from a lengthy judicial career is thus implausible, to say the least.

This year - arguing to a Republican-controlled Congress - Rehnquist made no such arguments, and offered no further examples. I believe I know why.

Chief Justice Rehnquist Is Making A Subtle Political Argument

During my days at the U.S. Justice Department and later at the White House, I was involved in recruiting federal judges; I also assisted several lawyers who wanted seats on the federal bench. In the years since my government service, I have talked with others involved in such work.

Of course, generalities always have exceptions, and I have undertaken no empirical studies whatsoever. Yet based on what I do know from personal experience I can say it has always been easier for Democrats to recruit men and women they believe will be good judges than it has been for Republicans to do the same. This, I believe, is true because Democrats have tended to be more public-service-oriented than Republicans have.

In Rehnquist's annual statement for 2002, he reports that seventy federal judges left the bench between 1990 and 2002, many of them for financial reasons. I'd bet that of the seventy, more are Republicans than Democrats.

To understand what Rehnquist is implicitly suggesting, it's important to know some more background: Service on the federal bench can make an average trial lawyer into a superstar and big time rainmaker, if he or she returns to private practice - regardless of his or her politics. At a minimum, it probably triples that person's earning capacity. That means that while being a judge means financial sacrifice, being a former judge means reaping large financial rewards.

Members of Congress know this - for the same holds true for them, when they later become lobbyists. So it is difficult for them to feel too much concern for judges, who are merely in the same position. But Presidents, and especially Republican Presidents - perhaps including George W. Bush - may be convinced to take a more long-term view.

When Democrats controlled Congress, there was no shortage of liberal men and women willing to serve as judges for life. But there may be a shortage of conservatives willing to do so now - and that might make a real difference.

Why Conservative Judges May Be Hard to Recruit, and Hard to Keep As Well

Republicans like to appoint young federal judges, who under the Constitution will sit for life and thus will be influencing the law for many decades to come. (Think of the comparatively youthful Clarence Thomas, who could outlive every other Justice on the Court, and who was nominated by George H.W. Bush.)

And while no one can get rid of a federal judge, except through impeachment, the judge, unfortunately, can always hightail it off to a more lucrative private practice. In this way, appointing young can backfire: Young Republican federal district court, or even appeals court, nominees might serve, become restless, and simply leave - perhaps during a Democratic Administration, when they may be replaced by Democrats.

Rehnquist acknowledges that he is "not suggesting that there is a shortage of lawyers lined up to apply for vacant judgeships." Nor is he suggesting "we match the pay of the private sector." So what is the Chief Justice, in fact, saying?

Perhaps he is worried about the supply of first rate conservative lawyers for the federal judiciary, unless pay is increased. Or he may be worried about young conservative appointees' restlessness as from the bench, they see their peers in private practice grossly outpace them in pay.

Of course, Rehnquist couldn't say either of these things in his Report. But he certainly could give his message to a president privately.

Unless Rehnquist wanted to tell the President he plans to retire at the end of this term, I can't think of any other reason he made a personal trip to the White House to this year, now that Republicans control Congress.

Nor can I find any other reason why President Bush so promptly responded to his plea. Congress is likely to resolve the issue soon, too, and at the President's behest, to raise salaries. And when it does so, you can be well assured that what may simply look like fairness to a coordinate Constitutional branch, will actually be politics-as-usual.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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