Judicial Salary: Current Issues and Options for Congress

Judicial Salary: Current Issues and
Options for Congress
Updated September 16, 2008
Denis Steven Rutkus
Specialist on the Federal Judiciary
Government and Finance Division

Judicial Salary: Current Issues and
Options for Congress
Summary
Several federal judges, including the Chief Justice of the United States, have
expressed concern over the level of judicial salary. Chief Justice Roberts has called
the current levels of judicial salary a “constitutional crisis” that threatens the
independence of the federal courts. The most common arguments for raising judicial
salary claim that low judicial salaries (1) limit the ability of the federal judiciary to
draw on a diverse pool of candidates for positions on the federal bench; (2) force
federal judges concerned about their financial futures to resign from the bench before
they become eligible for retirement; and (3) drive other federal judges, upon
becoming eligible for retirement, to retire completely (to earn extra income outside
the judiciary), rather than remain to assist the courts as judges on “senior status.”
Opponents of raising judicial salary generally question whether variations in judicial
salary affect recruitment and retention of federal judges.
Examination of the available evidence on the effect of judicial salary on judicial
recruitment and retention suggests (1) trends away from appointing judges directly
from private practice and toward appointing federal judges who are already in the
judiciary (as state judges or federal bankruptcy or magistrate judges) date to before
the most recent decline in judicial salaries, (2) federal judges are not resigning from
the federal bench at rates much higher than historical averages, and (3) the percentage
of federal judges who chose retirement in lieu of senior status has also not risen
markedly in the last several years. From an examination of data on judicial
departures, we are unable to identify a conclusive relationship between judicial salary
and federal judges’ decisions to resign or retire.
Should Congress wish to address the issue of judicial salary, it has several
options. In addition to increasing the pay of federal judges on a one-time basis by a
specific amount or percentage, Congress might consider “de-linking” congressional
and judicial salaries, providing that judges receive salaries based on their cost of
living, revising retirement benefits, adjusting survivor benefits for the spouses and
dependents of federal judges, altering outside income limits, convening the Citizens’
Commission on Public Service and Compensation, or enacting automatic adjustments
for judicial salary.
Four bills concerning judicial salary have been introduced in the 110^th Congress:
S. 197 would adjust the salaries of federal judges upward by 1.7%; S. 2353 would
increase the salaries of federal judges by 16.5%; and S. 1638, as reported by the
Senate Judiciary Committee, and H.R. 3753, as ordered reported by the House
Judiciary Committee, would increase the salaries of most federal judges by 28.7%,
permit cost-of-living adjustments to judicial salaries to go into effect unless Congress
passed legislation stopping them from doing so, change the eligibility for federal
judges to retire, and change how the annuity they receive upon retirement is
calculated. S. 1638 also imposes limits on reimbursable travel and honorary
memberships for judges, as well as applying limits on outside earned income to U.S.
Supreme Court justices. This report will be updated as events warrant.

Contents
In troduction ......................................................1
Arguments For and Against Raising Judicial Salary.......................3
Effect of Judicial Salary on Recruitment and Retention of Federal Judges:
An Examination of the Relevant Data..............................5
Inability to Recruit Qualified Candidates...........................6
Early Departures of Federal Judges................................9
Recent History of Retirement Options for Federal Judges.........10
Current Options to Terminate Active Service...................11
Federal Judges Who Resign.................................12
Federal Judges Who Retire Rather Than Take Senior Status.......14
Evaluating the Data...........................................15
Strength of Correlations....................................15
Possible Intervening Variables...............................16
Judicial Salary Relative to Other Salaries......................18
Magnitude of Effects......................................18
Patterns in Judicial Salary..........................................18
Determining a Proper Time Interval for Evaluating Changes
in Judicial Salary.........................................18
Nominal And Real Judicial Salaries, 1955-2006.....................20
Options for Congress..............................................21
Raising Judicial Salary.........................................22
Appropriate Comparisons for Judicial Salary...................22
“De-linking” Congressional and Judicial Salaries....................25
Effect of Pay Parity on Judicial Salaries.......................27
Effect of Pay Parity on Congressional Salaries..................28
Arguments For and Against Pay Parity........................28
Locality Pay.................................................29
Revising Retirement Benefits...................................31
Survivor Benefits.............................................33
Outside Income Limits.........................................34
Citizens’ Commission on Public Service and Compensation...........35
Automatic Adjustments for Judicial Salary.........................36
Legislation in the 110^th Congress.....................................37
List of Figures
Figure 1. U.S. District Court Judges, 1933-2006: Percent Whose
Immediate Prior Positions Were in Private Practice, in the
Judiciary, or in Public Service (Including the Judiciary)................8
Figure 2. Percentage of Federal Judges Who Left Active Service by
Resigning, and Real Salary of District Court Judges, 1985-2007........13

Senior Status, and Real Salary of District Court Judges, 1985-2007.....14
Figure 4. Real Salaries of U.S. District Court Judges, 1955-2006...........21
List of Tables
Table 1. Comparison of Active Status to Resignation, Senior Status,
and Retirement for Federal Judges................................12
Table 2. Change in Salaries of U.S. District Court Judges
and Selected Other Professions, 1969-2006........................24
Table 3. Side-By-Side Comparison of Current Federal Judicial Salaries
and Proposed Salaries Under S. 1638, S. 2353, and H.R. 3753
(110^th Congress)..............................................37
Appendix 1. Number of Judgeships, Vacancies, Active Judges,
Departures from Active Service, and Method of Departure for
Article III U.S. District Courts, Court of International Trade,
and U.S. Courts of Appeals, 1985-2007...........................40
Appendix 2. Nominal and Real Salaries for U.S. District Court
and Court of Appeals Judges, 1955-2006..........................42

Judicial Salary: Current Issues and
Options for Congress
Introduction¹
Federal judges have repeatedly expressed concern about what they view as a²
continuing decline in their “real salary” level. Chief Justice Roberts has
characterized the current judicial pay rate as a “constitutional crisis,”³ particularly
noting that judicial salaries remain steady or decrease as the real salaries of lawyers,
law professors, and wage earners continue to increase. The salary for district court
judges is currently $169,300; the salary for court of appeals judges is currently
$179,500.⁴ In 2006 dollars, the median salary for district court judges between 1955
and 2006 was $167,047; the median salary for court of appeals judges over the same
time period was $178,139. While the judges’ current salary is only slightly below the
1955-2006 median, the salary level has steadily decreased since 1991, when the real
salary of district judges was $185,170 and of court of appeals judges was $196,419.

¹ This report was written by Kevin M. Scott, formerly an Analyst on the Federal Judiciary
at CRS. The listed author updated the report and is available to answer questions concerning
its contents.
² Throughout this report, a distinction is made between “real” and “nominal” values of
salary. “Real” values use the Consumer Price Index (CPI) to account for changes in cost
of living due to inflation and allow salaries from different time periods to be compared with
one another. Though the CPI includes components which vary across regions of the country
(e.g., housing, food, and gasoline), the CPI represents a national average for urban
consumers and may better reflect the true cost of living in some regions of the country than
in others. “Nominal” values are the actual amounts paid to federal judges and other workers
at a given time and cannot be compared over time. This report uses 2006 dollars as its
baseline because that is the year for which the most recent comparison data to other
professions is available.
³ John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The Third Branch,
Jan. 2007, p. 1.
⁴ The focus of this report is the salaries for U.S. district court judges and, to a lesser extent,
U.S. court of appeals judges. Salaries of the Justices of the Supreme Court traditionally rise
with the salaries of other judges. Associate Justices of the Supreme Court currently receive
an annual salary of $208,100; the Chief Justice receives an annual salary of $217,400. Since
1987, the Judicial Conference has determined the salaries of magistrate judges (normally
92% of the salaries of district court judges). By statute, the salaries of full-time bankruptcy
judges are equal to 92% of the salaries of district court judges. See 28 U.S.C. § 153 (a).
Salaries of the judges of the Court of International Trade have been equal to those of district
court judges since the court was established in 1980. Salaries of judges of the Court of
Federal Claims have been equal to the salaries of district court judges since 1987. See
[http://www.fjc.gov/history/home.nsf/page/salaries_bdy] for historical salary data.

Out of evident concern about the erosion of salary levels for federal judges in
recent years, four bills pending in the 110^th Congress would increase those levels.
While one bill (S. 197) would provide for a nominal 1.7% salary adjustment, the
other three — S. 2353, H.R. 3753, and S. 1638 — would provide for much more
substantial increases, of 16.5%, 28.7%, and 28.7% respectively (for specific values,
see Table 3, below). H.R. 3753 and S. 1638 would also grant federal judges annual
cost-of-living adjustments (COLAs) equal to the increase in base pay for General
Schedule (GS) salaries unless Congress acted to block the increase from taking
effect. In addition, H.R. 3753 and S. 1638 would, while retaining the “Rule of 80”
for senior status qualification, create a “Rule of 84” for retirement, where years of
service and age must add to 84 (starting at 67 years old and 17 years of service).
H.R. 3753 and S. 1638 would reduce the amount of annuity retired federal judges
receive if they have earned income that exceeds the value of their annuity; for every
$2 in annual earned income above the level of the annuity, a federal judge’s annuity
would be reduced by $1, but no reduction to an annuity could be greater than 67%.
H.R. 3753 and S. 1638 require that judges in senior status perform, each year, the
equivalent work of an active judge on their district or circuit performs in four
months. S. 1638 also includes a provision that restricts the reimbursable seminar-
related travel for federal judges to $2,000 per trip and $20,000 per year, with
exceptions for events approved by the State Department and those sponsored by the
federal government, state governments (not including public educational institutions),
bar associations, and the National Judicial College. S. 1638 also outlaws the
acceptance of honorary memberships valued at more than $50 per year and applies
the regulations of the Judicial Conference on outside earned income to justices of the⁵
U.S. Supreme Court.
This report
^! reviews the most common arguments that have been advanced in
recent years for and against raising federal judicial salaries;
^!examines a large body of data relevant to the question of whether
fluctuations in judicial pay levels have affected the federal
judiciary’s ability to recruit and retain judges;
^!considers various time periods (between 1955 and 2006)⁶ over
which the rise and fall of judicial salaries may be examined, taking
into account, as well, changes that have occurred at various points
in time in non-salary compensation that federal judges receive;
^!identifies and analyzes options available to Congress in addressing
the judicial pay issue in addition to increasing judicial salaries by a
specific amount or percentage on a one-time basis — including “de-
linking” congressional and judicial salaries, providing judges with

⁵ For more details on the nature of these restrictions see, below, “Outside Earned Income.”
⁶ See “Recent History of Retirement Options for Federal Judges,” below, for a discussion
of the use of 1955 as a starting point for salary comparisons.

salaries based on their cost of living, revising retirement benefits,
and altering outside income limits; and
^!provides a side-by-side comparison of the three bills noted above
that would provide for a substantial judicial pay increase, showing
how the levels provided for would compare with those of the
benchmark year of 1969 (the year of highest real salaries for federal
judges since at least 1913).
Should Congress choose to act, it can increase but not decrease judicial salaries.
The Constitution prohibits Congress from diminishing the salaries of Article III
federal judges.⁷
Arguments For and Against Raising Judicial Salary
The degree to which federal judges’ pay has changed depends on how it is
measured. While real judicial salary for district court judges declined 21.5% between
1969 and 2006, such a calculation does not take into account real income growth for
other classes of wage earners. According to Paul Volcker, chairman of the National
Commission on Public Service, the real compensation of the average wage earner has
grown 18.5% since 1991, and the real salaries of federal workers more generally have⁸
grown 15.1%. The real growth of salaries for individuals whom federal judges
regard as their professional peers, particularly partners in law firms and law⁹
professors, may have been even greater. Using those benchmarks, the 2003 Volcker
Commission study reported a more notable decline in real judicial salary:
Judicial salaries are the most egregious example of the failure of federal
compensation policies. Federal judicial salaries have lost 24 percent of their
purchasing power since 1969, which is arguably inconsistent with the
Constitutional provision that judicial salaries may not be reduced by
Congress...The lag in judicial salaries has gone on too long and the potential for¹⁰
diminished quality in American jurisprudence is now too large.
Several professional organizations have expressed concerns similar to those
made by Chief Justice Roberts and other current and former members of the federal
judiciary. The American Bar Association, the National Bar Association, several state
and local bar associations, the U.S. Chamber Institute for Legal Reform, several law

⁷ Article III, Section 1 of the U.S. Constitution reads, “The judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive
for their Services, a Compensation, which shall not be diminished during their Continuance
in Office.”
⁸ Paul A. Volcker, “Judgment Pay,” Wall Street Journal, Feb. 10, 2007, p. A9.
⁹ “Need for Federal Judicial Pay Increase Fact Sheet.” Available at
[http://www.uscourts.gov/j udicial compensation/payf actsheet.html ].
¹⁰ National Commission on Public Service (Volcker Commission), Urgent Business for
America: Revitalizing the Federal Government for the 21^st Century, Jan. 2003, pp. 22-23.

school deans, and the American Judicature Society, among other organizations, have
expressed support for increasing the salaries of federal judges.¹¹ In addition, the
current administration of President George W. Bush has expressed support for raising
federal judges’ salaries.¹² On balance, the majority of expressed opinions on the
topic of judicial salary appear to favor some form of increase in the pay of federal
judges, though the specific amount of the pay and future prospects for judicial
compensation may divide judges, policymakers, and professional organizations.
The consequences of such a decline in judicial salary are alleged to be the
creation of problems of recruitment and retention in the federal judiciary. Abner
Mikva, who served in Congress, as a court of appeals judge, and as White House
counsel, has argued that low judicial pay has several consequences for the judiciary:
It is true that more judges, faced with the alternatives of senior status or outright
retirement, are choosing the more lucrative path of retirement. But they have
served their time, and a vacancy occurs whether or not the judge retires or takes
senior status. I chose retirement rather than senior status so that I could become
White House counsel. While I received no pay in that job, I have had the
opportunity to earn substantial income since I left the White House and became
a neutral with JAMS, a dispute-resolution firm. The public obviously benefits
from the ongoing service of a senior judge, but it is not a flaw in the system that
allows judges to have the option to make up for some lost earning opportunities
after retirement.
The real problem of inadequate judicial pay is the limits it puts on attracting
judges to the bench in the first place. I saw these limits both as White House
counsel for President Clinton, when I was very much involved in finding
candidates to fill judicial vacancies, and as a member of various selection panels
since I returned to the private sector. Lawyers most appropriate for consideration
as judges are at the height of their earning power in the private sector. At one
time law schools were a good place to look, but even those salaries have
advanced beyond the judicial levels now in existence. To ask a lawyer to go on
the bench from the private sector is usually to ask that person to take a drastic
reduction in earnings, as well as the other problems of living in a public¹³
fishbowl.
Those who argue against raising judicial salary tend to make four arguments.
First, they note that the salaries of federal judges are high relative to all workers in
the United States. The 2006 salary of federal district court judges ($165,200) would^th^th
put judges somewhere between the 90 and 95 percentile among all American
households, assuming no other members of the household had income as defined by
the Census Bureau. Court of appeals judges (2006 salary of $175,100) and Supreme

¹¹ See, generally, [http://www.uscourts.gov/judicialcompensation/support.html]. See also
Karen J. Mathis, president, American Bar Association, “Judicial Pay Crucial to Our Courts’
Future.” Jan. 5, 2007. Available at [http://www.abanet.org/abanet/media/oped/
oped.cfm?releaseid=60].
¹² Letter from Rob Portman, director, Office of Management and Budget, to Rep. John
Conyers, chair, House Judiciary Committee, Apr. 19, 2007. Available at
[http://www.uscourts.gov/j udicial compensation/OMBletter.pdf].
¹³ Abner Mikva, “Attracting the Best,” National Law Journal, June 4, 2007.

Court justices (2006 salary of $203,000 for associate justices and $212,100 for the
Chief Justice) would be above the 95^th percentile in household income.¹⁴ Second,
opponents argue that federal judges and the “perks” of being a federal judge
(prestige, job security, opportunity to select and work with law clerks, interesting
work, retirement package that offers full salary upon qualification) more than
compensate for any shortcomings in judicial salary.¹⁵ Third, some have argued that
raising judicial salaries may not solve some of the problems thought to be associated
with low and declining judicial salary. As Judge Richard Posner, a judge on the
Seventh Circuit Court of Appeals who has written extensively on judicial salary,
argues:
Raising salaries would not do a great deal to attract commercial lawyers to
judgeships. The lawyer who doesn’t want to exchange a $1 million income for
a $175,000 income is unlikely to exchange it for a $225,000 income — [Chief
Justice] Roberts doesn’t name a figure to which he thinks judicial salaries should
be raised, but he can hardly expect Congress to raise salaries by more than 30
percent, and that only intermittently, so that inflation will eat away at the salary¹⁶
until the next jump.
Fourth, they contend that many of the consequences one might expect from declining
salaries, including problems recruiting and retaining federal judges, have not¹⁷
manifested themselves in the degree to which advocates for judicial salary contend.
Effect of Judicial Salary on Recruitment and
Retention of Federal Judges: An Examination of the
Relevant Data
The difference of opinion on the necessity of a raise in judicial salary stems, in
part, from disagreement on some of the consequences of what might be considered
a low judicial salary. In particular, those who advocate and oppose increasing
judicial salary disagree over the extent to which declines in judicial salary:
^!make it more difficult to recruit federal judges from private practice,
depriving the federal judiciary of talented candidates;

¹⁴ For 2006, the household income for the 90^th percentile of American households was
$133,000; the household income for the 95^th percentile was $174,012. See U.S. Census
Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2006, Aug.

2007, p. 41. See Ibid., p. 27, for a definition of income.

¹⁵ See, e.g., James C. Harrington, “No Need To Boost Salaries,” The National Law Journal,
Jan. 16, 2006, p. 26. (Hereafter, cited as Harrington, “No Need To Boost Salaries.”) See
also Richard Posner, “Judicial Salaries,” The Becker-Posner Blog, Mar. 18, 2007. Available
at [http://www.becker-posner-blog.com/archives/2007/03/judicial_salari.html]. (Hereafter,
cited as Posner, “Judicial Salaries.”)
¹⁶ Posner, “Judicial Salaries.”
¹⁷ Harrington, “No Need To Boost Salaries.” See also Posner, “Judicial Salaries.”

^!lead more federal judges, before becoming eligible for retirement, to
leave the bench to work in private practice, increasing turnover in
the federal judiciary; and
^!lead more judges, after becoming eligible for retirement to leave the
judiciary (often for jobs in the private sector or elsewhere), rather
than remaining in the judiciary in semi-retired “senior status,”
depriving the federal judiciary of important resources of manpower
and expertise.
To date, little systematic evidence has been collected which would allow
Congress to evaluate the degree to which the current patterns of recruitment and
retention on the federal judiciary deviate from historical patterns and the degree to
which those deviations (if they do exist) can be attributed to fluctuations in judicial
salary. This report collects and analyzes evidence that can be used to evaluate how
increases and decreases in judicial pay have affected the federal judiciary’s ability to
draw on a diverse set of professional backgrounds and deter federal judges from
leaving their positions early to earn more money.
Inability to Recruit Qualified Candidates
Those who seek higher federal judicial salaries, including several current and
former federal judges, contend that relatively low judicial salaries deprive the federal
judiciary of the ability to recruit lawyers from private practice. As a result, federal
judges are increasingly drawn from other ranks of the judiciary and government
service rather than from private practice. The Ad Hoc Group on Federal Judicial
Salaries, for example, has argued that the declining earning power of federal judges
raises the prospect of “an alteration of the federal bench from one drawn from all
elements of the legal profession to one populated only by the independently wealthy
and those for whom a federal judicial appointment represents a salary
enhancem ent . ”¹⁸
Justice Stephen Breyer, in prepared remarks he delivered in April 2007 to the
Subcommittee on the Courts, the Internet, and Intellectual Property of the House
Judiciary Committee, outlined what he viewed as the consequences of such a shift:
A federal district court is a community institution. The federal judiciary will best
serve that community when its members come from all parts of the profession,
large firms, small firms, firms of different kinds of practice, all varieties of
government practice, other courts, and academia. That diversity, important as it¹⁹

is to the institution, is gradually disappearing.
¹⁸ Letter from John C. Danforth and Leon C. Panetta to Sen. Patrick Leahy, chair, Senate
Judiciary Committee, and Sen. Arlen Specter, ranking member, Senate Judiciary Committee,
May 7, 2007. The Ad Hoc Group on Federal Judicial Salaries listed as its members former
Members of Congress Howard H. Baker Jr., John C. Danforth, Richard A. Gephardt, Henry
J. Hyde, Susan Molinari, Sam Nunn, Leon E. Panetta, and Louis Stokes.
¹⁹ Testimony of Justice Stephen Breyer, U.S. Congress, House, Committee on the Judiciary,
(continued...)

Given the importance of the background of federal judges, an analysis of the
data cited by Justice Breyer may illuminate the degree to which the trends they cite
appear in the federal judiciary. The data cited by both Chief Justice Roberts and
Justice Breyer appear in Figure 1.²⁰ The indicator used in Figure 1, and by Justice
Breyer, is the occupations federal district court judges held immediately prior to their
appointments to the federal bench.
Though the proportion of judges coming to the federal bench from private
practice has declined since the Eisenhower Administration, current levels are roughly
equal to those of the presidential administrations of Franklin D. Roosevelt and Harry
S Truman. The appointment practices of Dwight D. Eisenhower’s administration
were exceptional in the extent to which district court judges were drawn from private
practice; the Eisenhower Administration appointed 65.1% of its federal judges from
private practice, while no other administration since 1933 has appointed more than

55% of its federal judges from the same population. Four Presidents since 1933 —

Franklin D. Roosevelt, Harry S Truman, William J. Clinton, and George W. Bush —
have appointed fewer than 40% of federal district judges directly from private
practice.
Since 1933, the percentage of federal judges whose immediate prior position
was another judgeship, either at the state or federal level, has increased. The
percentage of district court judges appointed by President George W. Bush who were
already judges — 46.8% — is 2.5 times greater than the percentage of district court
judges appointed by President Franklin D. Roosevelt who were already judges
(18.6%). Since 1933, only Presidents Ronald Reagan and George W. Bush have
appointed a smaller percentage of district court judges from the judiciary than their
immediate predecessors.
The data presented in Figure 1 do not illustrate a relationship between judicial
salary and the immediate prior positions of federal district court judges. While the
percentage of federal judges whose immediate previous position was another
judgeship has increased, on a fairly consistent basis, since 1933, the real salaries of
federal judges have risen and fallen several times over that same time interval. The
experiences of two presidential periods (Reagan and Nixon/Ford) highlight the
difficulties of comparing salary and immediate prior occupation of federal district
court appointees:

¹⁹ (...continued)
Subcommittee on Courts, the Internet, and Intellectual Property, Oversight Hearing on^th^st
Federal Judicial Compensation, 110 Cong., 1 sess., Apr. 19, 2007 (not yet printed).
Available at [http://www.uscourts.gov/testimony/JusticeBreyerPay041907.pdf], pp. 6-7.
²⁰ John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The Third Branch,
Jan. 2007, p. 3.

.S. District Court Judges, 1933-2006: Percent Whose Immediate Prior Positions Were in Private Practice, in
the Judiciary, or in Public Service (Including the Judiciary)

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^!Reagan Administration (1981-1988): Throughout this period, real
salaries for federal judges were below the 1955-2006 median. This
time period also saw a decline in the number of federal district
judges appointed whose immediate prior position was another
judgeship. The data for this period are inconsistent with the
argument that lower judicial salaries translate into more federal
judges whose immediate prior position was another judgeship.
^!Nixon/Ford Administrations (1969-1976): For all but one year of
this period, real salaries for federal judges were above the 1955-2006
median, while the percentage of appointed federal judges who were
from private practice (51.4%) was the second-highest of all
administrations within the 1933-2006 time frame.²¹ These data are
consistent with the argument that lower judicial salaries translate
into more federal judges whose immediate prior position was
another judgeship.
These examples suggest that any conclusions about the decrease in real salary
causing changes in the composition of professions leading to federal judgeships
should be made with caution.
Early Departures of Federal Judges
Federal judges concerned about the adequacy of their salary might choose one
of two methods to make more money than they do as federal judges. First, they may
simply resign as federal judges and take positions that provide higher levels of
compensation. Second, they may choose to retire, taking an annuity equal to their
salary upon retirement that will never increase, rather than taking senior status, which
entitles judges to continued cost-of-living adjustments if Congress authorizes such
adjustments for active judges. Advocates of higher judicial salary argue that federal
judges resign and retire at greater rates during periods of low judicial salary. In
testimony before the Subcommittee on Courts, the Internet, and Intellectual Property
of the House Judiciary Committee, Justice Samuel Alito noted the following:
Twenty Article III judges have resigned or retired from the federal bench since
January 1, 2005. It is our understanding that seventeen of these judges sought
other employment. Six of these judges retired to join JAMS, a California-based
arbitration/mediation [company], where they have the potential to earn the
equivalent of the district judge salary in a matter of months. Five judges entered
the private practice of law (presumably at much higher salaries). Two judges
resigned to become corporate in-house counsels. One judge resigned to accept
a state judicial appointment (at a higher salary). Another judge retired to accept
an appointment to a quasi-governmental position. One judge recently announced
his resignation to accept an appointment in higher education. One judge resigned²²

to accept an appointment in the executive branch of government.
²¹ The source data for Figure 1 and the accompanying text, combine the administrations of
Richard Nixon and Gerald Ford, as well as those of John Kennedy and Lyndon Johnson.
²² Testimony of Justice Samuel Alito, U.S. Congress, House Committee on the Judiciary,
(continued...)

The degree to which these numbers represent trends or aberrations in the federal
judiciary could help illustrate how the decisions federal judges make about remaining
in or leaving their positions are affected by judicial salary. If there is a relationship
between salary and early departure, then one way to increase the stability of the
judiciary would be to increase the salary of federal judges. If, on the other hand,
judicial salary and the method (and frequency) of departure from the federal judiciary
are unrelated, then increasing judicial salary may not alter the decisions of federal
judges to depart for other positions.
Recent History of Retirement Options for Federal Judges. Before
evaluating the relationship between salary and patterns of departure from the federal
bench, a review of the options federal judges have for departure may prove useful.
In the past 53 years, there have been two significant changes to the retirement system
for federal judges, one in 1954 and one in 1984. Congress also made modest changes
to senior status in 1989 and 1996.
In 1954, Congress enacted legislation allowing judges to take senior status if
they had reached 70 years of age with 10 years of service as an Article III judge or 65
years of age with 15 years of service. At the time, senior status allowed a federal
judge to “retain his office but retire from active service,”²³ (thus receiving their
salary) but did not specify how much work judges in senior status must do to retain
their offices. Judges could also “resign with salary” if they were 70 years old and had²⁴
served as Article III judges for at least 10 years. The 1954 legislation was the first
legislation that allowed judges younger than 70 to leave active service and receive
their salaries (though they could only take senior status and could not resign with
salary until they were 70 years old and had served for 10 years);²⁵ before that time,
only judges 70 and older could choose to depart while retaining their salary, and only
then by taking senior status.²⁶
In 1984, Congress enacted legislation that eliminated the two age and service
thresholds for senior status (70 years of age and 10 years of service, or 65 years of
age and 15 years of service) and replaced them with the Rule of 80, allowing any
judge to take senior status who was at least 65 years of age and whose age and years
of service add to at least 80. The 1984 legislation also eliminated the option of
judges “resigning with salary” but allowed judges to “retire” and permitted judges to

²² (...continued)
Subcommittee on Courts, the Internet, and Intellectual Property, Oversight Hearing on^th^st
Federal Judicial Compensation, 110 Cong., 1 sess., Apr. 19, 2007 (not yet printed).
Available at [http://www.uscourts.gov/testimony/JusticeAlitopay041907.pdf], pp. 19-20.
The figures cited by Justice Alito include federal district court and court of appeals judges
on senior status who chose to retire, as well as federal judges in active service who chose
to resign or retire.
²³ P.L. 294, 68 Stat. 12 (Feb. 10, 1954).
²⁴ Ibid.
²⁵ Ibid.
²⁶ Act of April 10, 1869, 16 Stat. 45 (Apr. 10, 1869).

exercise this option if they met the criteria of the Rule of 80.²⁷ Practically speaking,
resigning before 1984 and retiring after 1984 were the same: judges who choose this
option (i.e., retire) leave office but receive the salary they were receiving upon
departure for the rest of their lives.
In 1989, Congress allowed judges serving in senior status to receive the same
adjustments to salary that judges in active service received. In so doing, Congress
outlined the criteria for qualifying for senior status (and the pay adjustments). Each
year, senior status judges must handle the equivalent of 25% of the caseload of an
active judge or serve the federal judiciary in an administrative capacity.²⁸ In 1996,
Congress further amended the provisions of senior status to allow judges to count
work done in later years to fulfill the workload criteria for earlier years in which they
did not meet the 25% threshold and to count administrative work toward the 25%.²⁹
Current Options to Terminate Active Service. Under current law,
federal judges may retire or take senior status when they are at least 65 years of age
and their age and years of service in Article III judgeships add to at least 80 (the Rule
of 80).³⁰ Federal judges who resign, rather than retire, are not eligible for judicial
retirement. Unlike pension plans where individuals may acquire some level of
retirement income (partial vesting) after a few years of employment, judicial
retirement is all-or-nothing: federal judges who do not meet the requirements of the
Rule of 80 do not earn retirement benefits. A federal judge who is appointed at 45
years of age and resigns at 60 will receive no annuity because both the age and years
of service requirements must be met to qualify for judicial retirement; for the same
reason, a federal judge appointed at 50 who resigns at 59 will also not receive judicial
retirem en t.³¹

²⁷ P.L. 98-353, 98 Stat. 333 (Jul. 10, 1984). Before 1984, resignation with salary was only
available to judges who had reached the age of 70 and had 10 years of service. The
difference between resignation, resignation with salary, and retirement is important when
considering patterns of departure from the federal judiciary. Since 1984, judges who resign
have done so without any pension; those who retire receive an annuity equal to the salary
they were receiving when they retired.
²⁸ P.L. 101-194, 103 Stat. 1716, 1770 (Nov. 30, 1989).
²⁹ P.L. 104-317, 110 Stat. 3847, 3851 (Oct, 19, 1996).
³⁰ 28 U.S.C. § 371.
³¹ Federal judges who take another position in the federal government, or served in the
federal government before becoming a federal judge, may be eligible to receive credit for
time served in the federal judiciary under the Civil Service Retirement System (CSRS) or
Federal Employee Retirement System (FERS). Like other federal employees, most federal
judges whose employment with the federal government (not necessarily their date of
employment as a federal judge) began before Jan. 1, 1984, would be enrolled in CSRS; those
whose federal employment began on or after Jan. 1, 1984, would be enrolled in FERS.
Federal employees whose service started before Jan. 1, 1984 could choose to enroll in
FERS. See Administrative Office of the U.S. Courts, Senior Status and Retirement for
Article III Judges, Judges Information Series No. 4, (Washington: Administrative Office of
the U.S. Courts, Apr. 1999). All federal judges may participate in the Thrift Savings
Program, contributing up to 5% of their salaries, but there is no matching contribution made
(continued...)

Federal judges may depart active status on their court in a variety of ways: they
may resign, be impeached and convicted, be elevated, resign, retire, take senior
status, or die while in office.³² If judicial salary is related to departure (that is, if
judges are more likely to leave the bench when salary levels are low), then one
should expect to observe two phenomena when judicial salaries decline: an increase
in the number of judges who resign (and, so doing, forfeit judicial retirement) and
judges who opt to retire rather than take senior status upon qualifying under the Rule
of 80. Doing the latter (retiring rather than taking senior status) would allow a judge
to earn income in a position (in private practice or academia) while still drawing a
judicial retirement annuity that does not change as the salaries of active judges
change. Table 1 summarizes the options federal judges have to leave active service
under current law, and the consequences of those choices, in comparison with active
service.
Table 1. Comparison of Active Status to Resignation, Senior
Status, and Retirement for Federal Judges
St at us Ac t i ve Resignation Senior Retirement
Benef it Servi c e St at us
Li fetime Ye s No Ye s Ye s
Nondiminishing
Compensation
Congress-approved Ye s No Ye s No
Salary Increases
Exemption from FederalNoNoYesYes
Taxes on Compensation
Can Earn UnlimitedNoYesNoYes
Nonjudicial Income
Judicial Chambers,YesNoYesNo
Clerks, Administrative
Support
^Source:^A^d^ap^ted^f^r^o^m^A^l^b^e^r^t^Yo^oⁿ^{, “}^A^s^Yo^u^Lⁱ^k^e^I^{t: Fed}^e^r^a^{l J}^u^d^g^{es an}^d^th^{e P}^o^{litical Eco}ⁿ^o^m^y^o^f
^J^u^{dicial T}^eⁿ^u^r^e,”^Jour^nal^of^Em^pi^rⁱ^cal^L^e^gal^St^udi^es^{, v}^o^l^.^{2, n}^o^{. 3 (N}^ov^{. 2005), p. 511.}
Federal Judges Who Resign. To evaluate the claim that departures of
federal judges are related to salary, one might start by distinguishing between judges
who resign and those who retire. Judges who resign are not eligible for judicial
retirement, so they may make a significant monetary sacrifice by resigning from the
federal bench that they hope to offset by alternative employment. The years after

³¹ (...continued)
by the federal government.
³² Federal judges may also be assigned to another court if Congress reorganizes the district
courts or circuit courts of appeals. Such changes are not considered in this report to end a
judge’s service.

1984 provide a reasonable period for analysis of judicial departures due to the
changes in judicial retirement and resignation. “Resignations” before the enactment
of the 1984 legislation could come with salary if the judge met the age and years of
service requirement; all resignations after enactment of the 1984 legislation meant
that the resigning judges would receive no judicial retirement.
Figure 2 plots the percentage of lower court judges who departed their position
by resignation between 1985 and 2007 against the real salary of district court judges
over the same time period.
Figure 2. Percentage of Federal Judges Who Left Active Service by
Resigning, and Real Salary of District Court Judges, 1985-2007

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^{period w}^h^{o res}ⁱ^gⁿ^e^d^,^{retired, took}^s^eⁿⁱ^{or s}^t^atu^s^{, w}^e^{re im}^peach^{ed an}^{d con}^vⁱ^{cted, or w}^h^os^{e reces}^s
^appoiⁿ^t^m^eⁿ^t^s^ex^pi^{red w}ⁱ^t^h^ou^t^S^eⁿ^a^t^e^con^fⁱ^r^m^a^tⁱ^oⁿ^.^D^a^t^a^{are cu}^rren^t^t^h^ro^{ugh Decem}^b^e^r³¹^,^2007.
^No^te:^T^h^e^s^o^{lid lin}^{e plots}^th^{e m}^e^dian^{real s}^a^lary^f^o^{r di}^s^t^rict^cou^r^t^j^u^dg^es^f^o^{r each}ⁱⁿ^terv^{al (th}^e^s^a^laries
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^th^{e percen}^tag^e^of^A^r^{ticle III dis}^t^{rict cou}^r^{t j}^u^dg^es^w^h^{o lef}^t^activ^{e s}^t^atu^s^by^resⁱ^gⁿⁱⁿ^gⁱⁿ^each^period.
Since 1985, the percentage of judges who resign and forgo judicial retirement
has fluctuated. In the first 16 years after 1985, the percentage of judges who resigned
declined in every four-year period while real judicial salary increased in the first three
of those same four-year periods. Between 2001 and 2004, in contrast, when real
judicial salary rose slightly over the 1997-2000 period, 6.4% of federal judges who

left active status did so by resigning. In 2005 and 2006, 7.9% of federal judges who
left active status did so by resigning. Generally speaking, as salaries rose, the
percentage of judges who left office by resignation fell, but the 1997-2000 period,
where no federal district judges resigned though real salary fell, stands as an
exception to the general trend.
Federal Judges Who Retire Rather Than Take Senior Status. Federal
judges who do not qualify to take judicial retirement, but who are concerned about
their compensation, make a decision to remain a member of the federal judiciary or
resign and pursue alternative employment. On the other hand, federal judges who
meet the requirements for judicial retirement (the Rule of 80) face a different choice;
they may choose to retire (after which they may or may not pursue additional
employment) or take senior status, where they continue to hear cases and perform
administrative tasks for their courts. Both retired and senior judges receive an
annuity equal to the salary they were receiving when they left active status; only
judges on senior status, however, continue to receive cost-of-living adjustments and
any other raises Congress approves as long as they remain in senior status.
Figure 3. Percentage of Federal Judges Who Retired Rather than
Take Senior Status, and Real Salary of District Court Judges, 1985-

2007

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¹⁴⁰⁰⁰⁰
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^sam^e^p^e^rⁱ^o^d^w^h^o^r^e^tir^ed^f^r^o^m^active^ser^v^{ice o}^r^t^o^o^k^senio^r^status.^{Data ar}^{e cur}^r^e^{nt thr}^o^{ugh Decem}^b^e^r
^{31, 2007.}

^No^te:^T^h^{e s}^o^{lid lin}^{e plots}^th^{e m}^e^dian^{real s}^a^lary^f^o^r^di^s^t^{rict cou}^r^{t j}^u^dg^es^f^o^{r each}ⁱⁿ^terv^{al (th}^e^s^a^laries
^of^C^o^u^r^{t of}^In^tern^ation^a^{l T}^r^{ade j}^u^dg^es^{are th}^{e s}^a^m^e^as^th^os^e^of^dis^t^rict^cou^r^{t j}^u^dg^es^an^{d th}^{e s}^a^laries
^of^cou^r^{t of}^appeals^j^u^dg^es^f^o^llow^th^{e s}^a^m^e^pattern^as^th^os^{e of}^dis^t^{rict cou}^r^{t j}^u^dg^es^{); th}^{e colu}^mⁿ^s^plot
^t^h^e^p^e^r^c^eⁿ^t^a^g^e^o^f^A^r^tⁱ^c^l^e^I^I^I^dⁱ^s^t^rⁱ^c^t^c^o^u^r^t^ju^d^g^e^s^w^h^o^c^h^o^s^e^r^e^tⁱ^r^e^m^eⁿ^t^o^v^e^r^s^eⁿⁱ^o^r^s^t^a^t^u^sⁱⁿ^each
^peri^od.
Figure 3 presents data on the percentage of federal district court judges who,
between 1985 and 2006, opted for outright retirement rather than senior status. The
data presented in Figure 3 demonstrate that, with the exception of the 1997-2000
time period, the percentage of district court judges who retired rather than take senior
status declined steadily, if not dramatically, since the 1989-1992 period. Over the
1985-2007 time period, the percentage of district judges who retired rather than take
senior status fell from 4.95% in the 1985-1988 time period to 1.22% in 2005-2007.
Though the raw number of federal judges choosing retirement without first taking
senior status between 1985 and 2007 may not be large (29 judges, compared with 695
who took senior status in that time frame), variations over time may still help explain
the effect of judicial salary on the departure decisions of federal judges. If declining
judicial salary explains the choice judges make between retirement and senior status,
it might be argued that judges in the 2001-2004 and 2005-2007 periods should have
retired at rates comparable to the 1997-2000 period, whereas the retirement rates for
those two periods are actually lower than the 1997-2000 time period, and the
retirement rate for the 2005-2007 time period was the lowest of any time period since

1985.

Evaluating the Data
The data evaluated to this point note only the degree to which judicial salary is
correlated with the professional backgrounds of district judges and the departure via
resignation or retirement of federal judges. Establishing correlation is a necessary,
but not a sufficient, condition to establish causation. This section evaluates, first, the
strength of the correlations established by the data and, second, considers what
intervening variables might influence the relationship between judicial salary and the
kind of candidates recruited to become federal judges and how federal judges depart
the bench. Any conclusions made about causation from correlations should be made
with these considerations in mind.
Strength of Correlations. The data presented here suggest that there are, at
best, weak correlations between judicial salary levels and the pool of candidates from
which judges are drawn. While the federal judiciary consists of a different mix of
individuals than it did 50 or 70 years ago, concluding that these trends are caused by
lower judicial salary raises several concerns. Changes in the immediate prior
position of district court judges appear to arise independent of fluctuations in judicial
salary; the decline in private practice as a prior occupation dates to the Eisenhower
administration, and the increase in service as judge as a prior occupation dates at least
to the Franklin D. Roosevelt administration, while judicial salary has risen and fallen
several times over those same time periods. Establishing the correlation that is a
prerequisite for causation requires more convincing data than the data presented thus
far by advocates of higher judicial salary.

Similarly, determining that low judicial salaries cause judges to depart early,
either by resigning or by retiring rather than taking senior status, can be difficult. The
correlations between judicial salary and the number of judges who resign or retire
(rather than taking senior status) again appear to be limited. The proportion of judges
resigning declined in every four-year period between 1985 and 2000, and judicial
salary rose in all but the last (1997-2000) four-year period in that time interval,
suggesting that there may have been, at least between 1985 and 1996, an inverse
relationship between judicial salary and the proportion of judges who resign. That
pattern, however, does not necessarily hold for the 1997-2006 period. Over those 10
years, real judicial salaries dropped during the 1997-2000 period and then fluctuated
little. Yet, the number of judges who resigned varied from 0% in 1997-2000 to
7.8% in 2001-2004, two periods in which real judicial salaries differed by less than
1.1% (the median real salary for district court judges was $166,618 for 1997-2000
and $168,441 for 2001-2004).
Finally, the percentage of judges who opted to retire rather than take senior
status between 1985 and 2007 appeared to decline — to 1.22% between 2005 and

2007 from 4.95% between 1985 and 1988. If low judicial salary caused retirements,

then the rate of retirements should have remained constant from 1997 to 2007, a
period of nearly constant real salary for federal judges. Instead, the percentage of
judges who retired rather than take senior status declined over that time period.
Concluding that judicial salary has caused fewer judges to be drawn from private
practice (or more from other ranks of the judiciary), or that judicial salary causes
judges to resign or retire are claims that require the development of more conclusive
evi d ence.³³
Possible Intervening Variables. Even if correlations are established, they
may exist due to intervening factors — some unconsidered factor which may explain
the relationship between the two factors observed to correlate with one another. In
the case of the relationship between judicial salary and judicial recruitment and

³³ There is a small body of academic literature that evaluates the influences on judges’
decisions to leave the bench. That literature has reached competing conclusions. Deborah
Barrow and Gary Zuk find that salary increases reduce retirements by district court judges
in a given year, but have no effect on the number of retirements by court of appeals judges.
James Spriggs and Paul Wahlbeck find that increases in (inflation-adjusted) salary delay
departure for court of appeals judges appointed by Democratic presidents, but have no effect
on judges appointed by Republican Presidents. David Nixon and J. David Haskin find that
the effect of salary on individual-level retirement decisions is mixed, but that more court of
appeals judges retire in years with lower salary. Albert Yoon argues that judicial salaries
do not appear to effect judicial tenure or judicial retirement. However, all of these works
span several different eras of retirement policy and do not appear to distinguish between
retiring and taking senior status. See Deborah J. Barrow and Gary Zuk, “An Institutional
Analysis of Turnover in the Lower Federal Courts, 1900-1987,” Journal of Politics, vol. 52,
no. 2 (May 1990); James F. Spriggs II and Paul J. Wahlbeck, “Calling it Quits: Strategic
Retirements on the Federal Courts of Appeals, 1893-1991,” Political Research Quarterly,
vol. 48, no. 3 (Sep. 1995); David C. Nixon and J. David Haskin, “Judicial Retirement
Strategies: The Judge’s Role in Influencing Party Control of the Appellate Courts,”
American Politics Quarterly, vol. 28, no. 4 (Oct. 2000); and Albert Yoon, “Love’s Labor’s
Lost? Judicial Tenure Among Federal Court Judges: 1945-2000,” California Law Review,
vol. 91, no. 4 (Jul. 2003).

judicial tenure, one might consider, as a potential intervening variable, the impact of
the changing nature of the appointment process. The average confirmed district court
nominee was pending before the Senate for 70 days if nominated by President Jimmy
Carter; through the 109^th Congress, the average time from nomination to
confirmation of confirmed district court nominees by President George W. Bush was
171 days.³⁴ Independent of fluctuations in judicial salary, the longer amount of time
that now passes between nomination and confirmation may deter candidates who
otherwise might be interested in federal judgeships from expressing interest in those
positions. President Bush suggested that the contemporary practices in the
nomination and confirmation process may have affected who will serve in the federal
judiciary:
Lawyers approached about being nominated will politely decline because of the
ugliness, uncertainty, and delay that now characterizes the confirmation process.
Some cannot risk putting their law practices — their livelihoods — on hold for
long months or years while the Senate delays action on their nominations. Some
worry about the impact a nomination might have on their children, who would
hear dad or mom’s name unfairly dragged through the mud. So they decide to
remove themselves from consideration. When people like this decline to be
nominated, they miss out on a great calling. But America is deprived of³⁵
something far more important: the service of fair and impartial judges.
Establishing a causal relationship between judicial salary and departures may
also be confounded by intervening variables. Generally speaking, departures may be
driven by job satisfaction in addition to concerns about judicial salary. Judges whose
caseloads are higher may be more likely to resign than judges whose caseloads are
lower. Several studies have indicated that the per-judge caseload in many districts
and circuits is much higher than it was 30 or 40 years ago, and may contribute to³⁶
decisions judges make to depart the federal bench. Judges may also be concerned

³⁴ CRS Report RL31868, U.S. Circuit and District Court Nominations by President George
W. Bush During the 107^th-109^th Congresses, by Denis Steven Rutkus, Kevin M. Scott, and
Maureen Bearden, p. 35. President Jimmy Carter’s confirmed nominees to the courts of
appeals spent an average of 69 days pending in the Senate; on average, 300 days elapsed
between first nomination and confirmation of President George W. Bush’s confirmed court^th
of appeals nominees. All data are current through the end of the 109 Congress (2005-2006).
³⁵ U.S. President (G.W. Bush), “Remarks at The Federalist Society’s 25^th Annual Gala,”
Weekly Compilation of Presidential Documents, vol. 43 (Nov. 15, 2007), p. 1510.
³⁶ As an illustration, the number of unweighted filings per authorized district court judgeship
rose from 448 in 1990 to 545 in 2004, then fell to 482 in 2006. The number of weighted
filings per district court judgeship reflects a similar pattern. One caveat to keep in mind is
that this value does not account for senior status judges or vacant judgeships. See
[http://www.uscourts.gov/judicialfactsfigures/2006/Table602.pdf]. “Weighted filings” use
a system developed by the Federal Judicial Center to account for how much of a judge’s
time each case type should take. Weighted filings is an annual measure of court workload
updated every three months. According to the Administrative Office for the United States
Courts, “average civil cases or criminal defendants each receive a weight of approximately
1.0; for more time-consuming cases, higher weights are assessed (e.g., a death-penalty
habeas corpus case is assigned a weight of 12.89); and cases demanding relatively little time
from judges receive lower weights (e.g., a defaulted student loan case is assigned a weight
(continued...)

about personal security, collegiality on their courts, and a myriad of other factors
when they consider remaining on the bench or departing the bench. If one adds these
possible intervening variables to the weak correlations discussed above, it becomes
clear that more evidence may be necessary to evaluate the degree to which judicial
salary causes the changes that may be taking place in the federal judiciary.
Judicial Salary Relative to Other Salaries. Real salaries for district court
judges declined 21.5% — to $165,200 from $210,570 — between 1969 and 2006
while the real salaries of other wage earners rose over the same time period. As
discussed below, the salaries of individuals federal judges may consider as
professional peers — law professors, partners in law firms — have increased at rates
greater than those of the average wage earners, leaving federal judges with the
perception that their salaries continue to fall further behind where they were in 1969
than the actual dollar figures illustrate. That perception, and any deleterious effects
that perception may have on who becomes a judge, how long judges remain on the
bench, and the quality of the work they provide as federal judges, may magnify
observed effects in ways that are difficult to measure using objective criteria. That
is, federal judges may not be exiting the federal judiciary at greater rates during
periods of lower salary, but the perception that they are doing so may affect the
morale of the judiciary.
Magnitude of Effects. Although statistical analysis may not reveal a strong
effect for salary on the career decisions of federal judges, several former federal
judges have pointed to salary as one of their reasons for departure.³⁷ Furthermore,
though the effect of judicial salary on recruitment and retention in the federal
judiciary may be modest, some advocates for higher judicial salary argue that the role
of judicial salary in career considerations may continue to grow. As the American
Bar Association and Federal Bar Association have noted of the departures of federal
judges, “even though the absolute number of departures is not large, the trend is
alarming because the number is increasing significantly (even after factoring in the
overall growth of the federal judiciary) in a profession where there is an expectation,
grounded in the Constitution, of life tenure.”³⁸
Patterns in Judicial Salary
Determining a Proper Time Interval for
Evaluating Changes in Judicial Salary
An informed consideration of options available to Congress, should it wish to
address the issue of judicial salary, requires an understanding of the fluctuations that

³⁶ (...continued)
of 0.031).” See [http://www.uscourts.gov/library/fcmstat/cmsexpl06.html].
³⁷ A collection of selected statements from federal judges can be found in American Bar
Association and the Federal Bar Association, “Federal Judicial Pay: An Update on the
Urgent Need for Action,” May 2003, pp. 27-28.
³⁸ Ibid, p. 20.

have occurred in judicial salary over time. It also requires choosing an appropriate
time frame over which to evaluate claims made in favor of and against raising
judicial salary. Any choice of baseline has strengths and weaknesses. One useful
way to choose baselines may be to consider changes in the non-salary compensation
that federal judges receive. In monetary terms, the most significant non-salary
benefit is the retirement package available to federal judges who choose to vacate
their position by retirement or by taking senior status. When comparing judicial
salary over time, it may prove useful to keep the changes in judicial retirement
benefits in mind. Comparisons of judicial salary within, rather than across, the eras
defined by retirement benefits (1955-1984, 1984-1989, and 1989-present) could be
more useful. Directly comparing salary data across these time periods should be
undertaken with caution, as any such comparison does not account for the non-salary
compensation available to federal judges. By creating the Rule of 80, the 1984
legislation³⁹ made it easier for judges to qualify for either senior status or retirement,
which may have increased the attractiveness of federal judgeships without a direct
increase in the salary in that time interval. The 1989 legislation⁴⁰ may have made
senior status a more attractive option because judges in senior status could qualify for
the same salary adjustments as active judges. At the same time, the 1989 legislation
may have encouraged federal judges to retire rather than taking senior status because
it required, for the first time, that federal judges perform a certain level of work to
qualify to remain in senior status.
The Judicial Conference, and federal judges who have testified on the issue of
judicial salary, favor comparisons using 1969 as a baseline.⁴¹ In that year, the
salaries of federal judges rose to $40,000 from $30,000. In 2006 dollars, the increase
was to $219,727 from $173,793 — a raise of $45,934. The salaries paid federal
judges in 1969 were the highest real salary for federal judges in any year since at least

1913.⁴² While comparisons of judicial salary since 1969 span more than one era of

³⁹ P.L. 98-353, 98 Stat. 333, 350.
⁴⁰ P.L. 101-194, 103 Stat. 1716, 1770-1771.
⁴¹ See, e.g., John G. Roberts Jr., “2006 Year-End Report on the Federal Judiciary,” The
Third Branch, Jan. 2007. Testimony of Justice Stephen Breyer, U.S. Congress, House,
Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property,^th^st
Oversight Hearing on Federal Judicial Compensation, 110 Cong., 1 sess., Apr. 19, 2007
(not yet printed); available at [http://www.uscourts.gov/testimony/
JusticeBreyerPay041907.pdf]. Testimony of Justice Samuel Alito, U.S. Congress, House
Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property,^th^st
Oversight Hearing on Federal Judicial Compensation, 110 Cong., 1 sess., Apr. 19, 2007
(not yet printed); available at [http://www.uscourts.gov/testimony/
JusticeAlitopay041907.pdf]. Testimony of Justice Anthony M. Kennedy, U.S. Congress,^th
Senate Committee on the Judiciary, Hearing on Judicial Security and Independence, 110^st
Cong., 1 sess., Feb. 14, 2007 (not yet printed). CQ Congressional Transcripts; available
at [http://www.cq.com/committees.do]. Administrative Office of the U.S. Courts, “Need
for Federal Judicial Pay Increase Fact Sheet”; available at [http://www.uscourts.gov/
j udicialcompensation/payf actsheet.html ].
⁴² Russell R. Wheeler and Michael S. Greve, “How to Pay the Piper: It’s Time to Call
Different Tunes for Congressional and Judicial Salaries,” Issues in Governance Studies,
(continued...)

retirement, using 1969 as a baseline may be useful because data on salaries of
comparable professions from that year, collected by the Judicial Conference, may
help assess the change in judicial salaries relative to other professions. It would,
however, be misleading to compare patterns in departure from the bench across the
different time periods, given changing meanings assigned to “retire” and “resign,”
distinctions that are an important part of the judicial salary debate.
Nominal And Real Judicial Salaries, 1955-2006
Figure 4, below, illustrates real (dollar values adjusted for inflation) salaries for
federal district court judges. Appendix 2 includes these nominal and real values for
the salaries of district court judges, court of appeals judges, and the average for
American wage earners over the 1955-2006 time interval. As the data presented in
Figure 4 and Appendix 2 indicate, judicial salaries have varied considerably since
1955; their lowest real value (since 1955) occurred in 1986, when the real salary was
$144,762 for district court judges and $153,039 for court of appeals judges. The
highest real salaries in the last 50 years occurred in 1969, when the real salary was
$210,570 for district court judges and $222,018 for court of appeals judges.⁴³ Within
this range, the current salaries are closer to the minimum than the maximum real
values, but they are also not very far from the median values for district and court of
appeals judges over the 1955-2006 interval. The median real salary for district court
judges between 1955 and 2006 is $167,047. The 2006 real salary for district court⁴⁴

judges, $165,200, was 98.9% of the median real salary for the 1955-2006 period.
⁴² (...continued)
Brookings Institution-American Enterprise Institute, Apr. 2007, pp. 13-15. (Hereafter, cited
as Wheeler and Greve, “How to Pay the Piper.”) The Bureau of Labor Statistics does not
track the Consumer Price Index (CPI) before 1913, making comparisons of pre-1913 values
to post-1913 values problematic. Given adequate data on inflation, one might consider
evaluating judicial salaries back as far as 1891, the date of the establishment of the current
hierarchy of district courts, courts of appeals, and the U.S. Supreme Court. Most scholars
of the history of the federal judiciary treat 1891 as the time of the creation of the “modern”
federal judiciary. See, e.g., Howard Gillman, “How Political Parties Can Use the Courts to
Advance Their Agendas: Federal Courts in the United States, 1875-1891,” American
Political Science Review, vol. 96, no. 3 (Sep. 2002), pp. 520-521. From 1891 to 1903,
district court judges received an annual salary of $5,000 and court of appeals judges
received an annual salary of $6,000; from 1903 to 1919, the salaries were $6,000 and
$7,000, respectively. See [http://www.fjc.gov/history/home.nsf/page/salaries_bdy].
⁴³ Most other sources, including the Federal Judicial Center
[http://www.fjc.gov/history/home.nsf/page/salaries_bdy] and the Administrative Office for
the U.S. Courts [http://www.uscourts.gov/salarychart.pdf], report salaries for district judges
in 1969 as $40,000 (nominal) and $219,727 (real), and $42,500 (nominal) and $233,460
(real) for court of appeals judges. But those salaries took effect on March 1, 1969; during
the first two months, federal judges were paid at the same rate as their 1968 salaries.
⁴⁴ The 2006 real salary for court of appeals judges, $175,100, was 98.3% of the 1955-2006
median real salary, $178,139.

Figure 4. Real Salaries of U.S. District Court Judges, 1955-2006

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Options for Congress
Should Congress choose to act to change the compensation for federal judges,
its choices are not limited to increasing the salary for federal judges, although such
a choice may address the immediate concerns of those who advocate for higher
judicial salary. Congress may also choose to consider several changes to the
structure of salary and benefits for federal judges, including “de-linking”
congressional and judicial salaries, paying judges different salaries based on the
location of their chambers, revising retirement benefits for federal judges, altering
survivor benefits for the spouses and dependents of federal judges, reconsidering
limits on the outside income judges are permitted to earn, convening the Citizens’
Commission on Public Service and Compensation, and creating “automatic”
adjustments for judicial salaries.

Raising Judicial Salary
Foremost among the requests of Congress by the Judicial Conference is an
increase in the salary paid to federal judges, though the Judicial Conference, and
individual judges and justices, have generally not outlined a specific salary level they
would like Congress to provide. Justice Breyer, in response to a question posed by
Representative Steve Cohen of Tennessee, said “the rule [Art. III of the Constitution]
is supposed to be no diminishment of compensation. Let’s keep it real, and let’s say
the compensation should stay the same compared to the average American that it was
when I took office. That’s what I think most judges would say.”⁴⁵
Appropriate Comparisons for Judicial Salary. A starting point for
considering the appropriate level of judicial salary may be determining the proper
comparison group for federal judges. Judicial salaries have been compared with
those of lawyers in private practice, heads of non-profit corporations, and judges in⁴⁶
other countries. No other occupation offers a perfect comparison to the work of
federal judges. Accordingly, making any comparisons across professions may prove
problematic. Many federal judges come from private practice, but many also come
from legal academia, state judiciaries, and other positions in the government (see
Figure 1, above). One may consider comparing salaries in those professions from
which judges come to judicial salaries with the proviso that such a comparison likely
does not fully account for the compensation (monetary and non-monetary) that
federal judgeships offer.
Members of the judiciary also compare the salaries of federal judges with those
of law school professors and deans. In 1969, the dean of Harvard Law School made
$40,000 ($219,728 in 2006 dollars) — very close to the then-salary of $38,333 for
U.S. district court judges and almost identical to the $40,417 salary of U.S. court of
appeals judges. Today, according to the Administrative Office of the U.S. Courts,
the deans of “top” law schools earn $430,000, or 95.7% more than the $219,728 real
salary of the dean of Harvard Law School 1969.⁴⁷ Senior professors at Harvard Law
School earned, on average, $28,000 in 1969 ($153,809 in 2006 dollars). Senior
professors at “top” law schools now earn, on average, $330,000, 114.6% more than

⁴⁵ Testimony of Justice Stephen Breyer, U.S. Congress, House Committee on the Judiciary,
Subcommittee on Courts, the Internet, and Intellectual Property, Oversight Hearing on^th^st
Federal Judicial Compensation, 110 Cong., 1 sess., April 19, 2007 (not yet printed). CQ
Congressional Transcripts. Available at [http://www.cq.com/committees.do].
⁴⁶ National Commission on Public Service (Volcker Commission), Urgent Business for
America: Revitalizing the Federal Government for the 21^st Century; John G. Roberts Jr.,
“2006 Year-End Report on the Federal Judiciary,” The Third Branch, Jan. 2007, pp. 1-2.
⁴⁷ Comparison of these two numbers should be made with caution, as the Administrative
Office of the U.S. Courts defines “top” law schools as those rated in the top 25 of the annual
survey of U.S. News and World Report. The comparable salaries of deans of “top” law
schools in 1969 may have been higher or lower than the salary of the dean of Harvard Law
School at the time. Data for 1969 and 2006 available at [http://www.uscourts.gov/
j udicialcompensation/factsheetcharts.html ].

the $153,809 real salary of senior professors at Harvard Law School in 1969.⁴⁸ By
comparison, district court judges earn $165,200, 21.5% less than what they earned
(in 2006 dollars) in 1969. Judges on the U.S. courts of appeals earn $175,100, 21.1%
less that what they earned (in 2006 dollars) in 1969.
In some respects, the working conditions for federal judges compare well to
those of law professors. Like law professors once they are granted tenure, federal
judges have considerable job security. Like law professors, federal judges have a
diverse workload. Like law professors, federal judges enjoy a certain amount of
prestige. But the monetary components of the two professions may not lend
themselves to perfect comparisons. Federal judges may enjoy retirement benefits that
are more generous than those of law professors, but law professors likely have much
more freedom to set their own schedules and choose work that they find interesting.
Law professors may also earn additional salary as consultants (though restrictions
may be imposed by their universities on the consulting they may do). Federal judges
may earn no more than 15% of the annual base pay rate for Level II of the Executive
Schedule in outside earned income; in 2007, federal judges were limited to earning
no more than $25,200 in outside earned income.⁴⁹
Comparing the two professions has other limits as well. Law schools are free
to bid for the services of faculty members in a market. Such a market does not exist
for federal judges, as only the federal government purchases the services of federal
judges. Such a market for law professors may drive up salaries of the best law
professors, whereas such competition for services does not exist within the judiciary
(“better” judges are not paid more than other judges). At the same time, both legal
academia and the judiciary are part of a broader market for legal services, and the
federal judiciary must compete with legal academia, private practice, and other
government agencies for the services of qualified individuals.
Nothing published by the federal judiciary, however, compares the salaries of
federal judges with those of state judges. Judges at the state level perform functions
comparable to those of federal judges, though workload, salary, and prestige vary
considerably across the different states. State judges also have less job security than
federal judges, as many of them must win elections to retain their positions. Despite
the imperfect comparison, the data on the salaries of state judges may help illustrate
the degree to which trends in federal judicial salary are trends common to all judges
or unique to members of the federal judiciary. The average (mean) salary for
associate justices on state courts of last resort in 2006 was $140,150.⁵⁰ By
comparison, the average (mean) salary for associate justices on state courts of last

⁴⁸ In addition to the caveats that apply to comparing salaries of deans, the Administrative
Office notes that the 1969 data were compiled based on nine-month teaching schedules; the
2006 data were based on 11-month teaching schedules. Data for 1969 and 2006 available
at [http://www.uscourts.gov/judicialcompensation/factsheetcharts.html].
⁴⁹ 5 U.S.C. App. § 501(a).
⁵⁰ National Center for State Courts, Survey of Judicial Salaries, vol. 32, no. 1 (Jan. 2007).
Available at [http://www.ncsconline.org/WC/Publications/
K IS_J udComJ udSal010107Pub.pdf].

resort in 1976 was $38,152 ($135,175 in 2006 dollars).⁵¹ In other words, the average
annual real salary of associate justices of state supreme courts rose 3.7% between
1976 and 2006. In that time, the annual salary of federal district court judges rose

6.0% (from $155,895 to $165,200 in real dollars).

Table 2, below, outlines several possible comparisons to other professions or
positions in legal services and calculates the salaries federal district court judges
would receive had their salaries experienced comparable growth to these other
professions or positions between 1969 and 2006. As noted above, 1969 provides a
high baseline for the salaries of federal judges, as their salaries in 1969 were the
highest real salaries federal judges have received since at least 1913. At the same
time, the Judicial Conference provides data for other professions in 1969; those data
are not available from the Judicial Conference for other years, so comparisons to

1969 are driven, in part, by data availability.

As the data in Table 2 indicate, salaries in all other fields reported have
increased, in real terms, since 1969. For some groups, particularly all lawyers and
associate justices of state supreme courts, those increases, relative to inflation, have
been quite modest. In other areas, particularly the legal academy and among law
partners, the increase in real salary has been more pronounced. Federal district court
judges represent the only group (presented here) for which real salaries declined in
the 1969-2006 period.
Table 2. Change in Salaries of U.S. District Court Judges and
Selected Other Professions, 1969-2006
2006 Salary of
PercentageDistrict Court Judges
Comparison Group1969 RealSalary2006 RealSalaryChange,If Salary Had Kept
1969-2006Pace with
Comparison Group
District Court Judges$210,570$165,200-21.5% —
All Wage Earners$32,376$38,651+19.4%$251,421
All Lawyers$101,547$101,695+0.1%$212,676
Profits of Law Partners$151,714$264,128^a+74.1%$366,602
Top 25 Law School Senior$153,809^b$330,000+114.6%$451,883
Professors
Top 25 Law School Deans$219,728^b$430,000+95.7%$412,085
State Supreme Court Associate$135,175^c$140,150+3.7%$218,361

Justices
⁵¹ National Center for State Courts, Survey of Judicial Salaries, vol. 2, no. 3 (Jan. 1976).
Available at [http://www.ncsconline.org/WC/Publications/KIS_JudComJudSal010176.pdf].

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“De-linking” Congressional and Judicial Salaries
Related to the issue of judicial salary is the relationship between the salaries of
federal judges and Members of Congress.⁵² To argue that judicial and congressional
salaries are “linked” might create the mistaken impression that judicial and
congressional (and executive salaries, as Executive Level II salaries are also “linked”
at the same level) all must move at precisely the same rate. Such an impression is
only partially correct. “There is no constitutional or statutory requirement (other than
the provision of law establishing the [Citizens’ Commission on Public Service and
Compensation]) that the salaries of federal executive branch officials and federal
justices and judges be limited by the salaries of Members of Congress, or that
Member pay be limited by the salaries of these federal executive and judicial⁵³
officials.” Unlike adjustments to Executive Schedule (EX) and congressional
salaries, which take effect under the Ethics Reform Act of 1989 unless Congress acts
to block them, adjustments to judicial salaries require affirmative action by Congress
in order to be raised. The Further Continuing Appropriations for Fiscal Year 1982

⁵² See, e.g., Wheeler and Greve, “How to Pay the Piper.”
⁵³ CRS Report RS20388, Salary Linkage: Members of Congress and Certain Federal
Executive and Judicial Officials, by Barbara L. Schwemle. See also CRS Report RL33245,
Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current
Salaries, by Barbara L. Schwemle.

Act requires that any increase in the salaries of judges and justices be “specifically
authorized by Act of Congress hereafter enacted.”⁵⁴ Congress did not enact the
recommended 1.7% pay increase for federal judges for calendar year 2007; S. 197,
which would provide the increase effective January 1, 2007, passed the Senate by
unanimous consent on January 22, 2007. The House has thus far taken no action on
the bill. The legislation is currently pending before the Courts, Internet, and
Intellectual Property Subcommittee of the House Judiciary Committee.
While there is no statutory linkage between congressional and judicial salaries,
the recommended annual increase is the same for members of Congress, Executive
Schedule (EX) employees, and federal judges. Until 2007, Congress enacted the
same increase for congressional, judicial, and EX salaries. Under the Ethics Reform
Act of 1989, the annual salary adjustments of Members of Congress, the Vice
President, persons employed on the Executive Schedule (EX), and federal judges are
based on the Employment Cost Index (ECI) for private industry wages.⁵⁵
Specifically, salary adjustments reflect the December-to-December change in the
ECI, reduced by 0.5%.⁵⁶ An additional statute restricts the rate of adjustment for
judicial, congressional, and executive officials whose salaries are covered by the
Ethics Reform Act of 1989 to being no greater than the rate of adjustment for the
base pay of General Schedule (GS) employees.⁵⁷
Those who refer to judicial and congressional salaries as “linked” correctly point
to the fact that the annual recommended salary adjustment (the December-to-
December change in the ECI, reduced by 0.5%) is the same for federal judges,
Members of Congress, and EX employees. But the process by which the annual
adjustment is enacted into law differs for the three sets of officials. For EX
employees and Members of Congress, the recommended adjustment takes place
unless Congress acts to block the increase. Since enactment of the Ethics Reform
Act of 1989, Congress has blocked enactment of the increase for EX employees and
Members of Congress in 1994, 1995, 1996, 1997, and 1999. In 2007, Congress
blocked enactment of the increase for Members of Congress, but not for EX
employees. The 2007 decision by Congress to not adjust congressional or judicial
salaries, but to allow EX salaries to increase, represented the first time since
enactment of the Ethics Reform Act of 1989 that EX Level II employees, Members
of Congress, and federal district court judges have received different salaries. As a
result, in 2007, EX Level II employees (deputy secretaries of departments, secretaries
of military departments, and heads of major agencies) received salaries of $168,000,
while Members of Congress and district court judges received salaries of $165,200.
In 2008, EX Level II employees, federal judges, and Members of Congress will
receive a cost-of-living adjustment of 2.5% to their 2007 salaries. For EX Level II

⁵⁴ P.L. 97-92, § 140.
⁵⁵ CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for
Adjusting Pay and Current Salaries, by Barbara L. Schwemle.
⁵⁶ Ibid. See 28 U.S.C. § 461(a)(1).
⁵⁷ CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for
Adjusting Pay and Current Salaries, by Barbara L. Schwemle. See 28 U.S.C. § 461(a)(2).

employees, the 2008 salary rate is $172,200⁵⁸ and Members of Congress and district
court judges will receive a 2008 salary of $169,300.
Because the mechanisms by which the salary recommendations for EX
employees, Members of Congress, and federal judges are enacted differ, it may not
be accurate to label those salaries as “linked,” to the extent that term implies that the
salaries can only move together. It may be more accurate to label the practice of
providing Members of Congress, federal district judges, and EX Level II employees
the same salaries as “pay parity.”
Effect of Pay Parity on Judicial Salaries. Advocates of abandoning parity
in judicial and congressional salaries contend that the rise of judicial salaries has⁵⁹
slowed since they were statutorily linked to the salaries of Members of Congress.
The relationship between pay parity and salary growth, however, is complex.⁶⁰
Between 1955 and 1986, a period when Congress, in statutorily increasing judicial
salaries, did not link those salaries to its own levels, real salaries of district court⁶¹
judges fell by 14.5% (0.5% per year), to $144,762 in 1986 from $169,254 in 1955.
Between 1987 and 2006, the real value of judicial (and congressional) salaries rose⁶²
5.9% (0.3% per year), to $165,200 in 2006 from $156,007 in 1987. Based on this
evidence, it appears that judicial salaries to date have actually risen more under pay
parity than absent a congressional practice of equal salary for Members of Congress
and federal district judges.
This finding is reinforced by accounting for wage growth among all workers
over the same time periods. Over the 1955-2006 time period, judicial salaries fared
better relative to all wage earners, on average, when they were equal to the salaries
of Members of Congress than when judicial salaries were not necessarily equal to

⁵⁸ See “Salary Table 2008-EX” at [http://www.opm.gov/oca/08tables/html/ex.asp].
⁵⁹ See, e.g., Wheeler and Greve, “How to Pay the Piper.”
⁶⁰ Congress set the salaries of Members of Congress and district judges at the same rate
($89,500) starting in 1987, though the current process for recommending salary adjustments
was not enacted until 1989. At the time of enactment of the Ethics Reform Act of 1989, the
salaries of Members and district judges were the same. The provision of the Ethics Reform
Act of 1989 dictating the method for calculation of annual adjustments to be the same for
Members and district judges, and Congress’s decisions since 1989 to not block increases in
congressional salaries and, at the same time, allow increases in judicial salaries, has left the
salaries equal in every year since 1987.
⁶¹ The translation from overall to annual percentage increases and decreases relies on the
formula for computing simple interest: S=P(1+rt), where S=future value, P=present value,
r=rate, and t=time. The formula was then solved for r.
⁶² This calculation should be interpreted with caution given its starting and ending points.
The choice of 1955 as a baseline was discussed above; also, as discussed above, the 1986
salaries of federal judges were the lowest real salaries over the 1955-2006 time period.
Between 1955 and 1986, wage earners nationwide experienced a real increase of 28%, or
0.9% per year. Real wages for all workers rose by $7,027 (to $31,862 from $24,835 in 2006
dollars). See National Average Wage Indexing Series at [http://www.ssa.gov/OACT/
COLA/AWI.html]; nominal values were adjusted for inflation using the Bureau of Labor
Statistics CPI Inflation Calculator at [http://data.bls.gov/cgi-bin/cpicalc.pl].

those of Members of Congress. Between 1955 and 1986, the real value of the
National Average Wage Index increased by 28% (0.9% per year); the real value of
the National Average Wage Index increased by 16.6% (1.0% per year) between 1987
and 2006.⁶³ Relative to all wage earners, judicial salaries fell by about 1.4% per year
between 1955 and 1986 (0.5% decline per year for judges compared to 0.9% increase
per year for all wage earners). After 1989, judicial salaries fell about 0.7% per year
relative to all wage earners (0.3% increase per year for judges compared to 1.0%
increase per year for all wage earners).
Effect of Pay Parity on Congressional Salaries. The growth of
congressional salaries has slowed more than the growth of the salaries of federal
judges since the two salaries have been equal. Between 1955 and 1986, the real
salaries of Members of Congress fell from $156,716 to $138,140, an 11.9% (0.4%
per year) decrease in real salary. Salaries of Members of Congress, like those of
federal judges, have risen 0.3% per year since 1987 (as noted above, the real salaries
of federal judges fell 0.5% per year between 1955 and 1986). Salary linkage, then,
appears to have increased the growth of congressional salaries (to 0.3% per year
increase from 0.4% per year decrease) slightly less than linkage has increased the
growth of judicial salaries (to 0.3% per year increase from 0.5% per year decrease).
Arguments For and Against Pay Parity. Should Congress choose to raise
the salaries of federal judges or change how the salaries of federal judges are set, it
could consider ending the practice of parity of congressional and judicial salaries and
allow them to increase at different rates. The primary argument against pay parity is
that the practice holds back judicial salaries:
For 20 years, legislators have matched their salaries to those of United States
district judges and deputy cabinet secretaries. They hoped that coupling their
own compensation with that of officials less in the public eye would salvage
legislative salary increases despite voter hostility. However, Congress has still
been reluctant to increase its salaries (compared to, say, average worker wage
gains). Thus, linkage has not produced the benefits legislators anticipated for
their own salaries, and at the same time, it has held back less controversial salary⁶⁴
increases for judges and executives.
There are at least two arguments in favor of pay parity. First, some Members
of Congress believe that their work is equal to that of federal district judges and,
accordingly, that both should receive the same salary. As Representative F. James
Sensenbrenner has argued,
I am one of those that believes that when you’re dealing with constitutional
officers of the government in all three branches — and you and we are — there
should be some type of comparability in compensation since the branches are
separate and co-equal....And I think the real question that has to be answered is

⁶³ The real value (2006 dollars) of the National Average Wage Index in 1955 was $24,835;
in 1986, it was $31,862; in 1987, it was $32,701; in 2006, it was $38,145. The National
Wage Index provides data from 1951 to 2005; the 2006 value was calculated by adjusting
the 2005 value for inflation, in effect assuming no real wage growth from 2005 to 2006.
⁶⁴ Wheeler and Greve, “How to Pay the Piper.”

not whether you deserve more pay or you don’t deserve more pay, but are the
duties and responsibilities and time involved in discharging the duties of a
federal district judge worth that much more than the duties, responsibilities and
time involved in being a member of the House of Representatives, or a United⁶⁵
States Senator.
The second argument for linkage is more pragmatic; Members of Congress may
favor pay parity as a mechanism to justify raising their own salaries.⁶⁶ Before 1987,
Congress tended to increase judicial salaries first and follow those increases by
raising the salaries of Members. Since 1928 (and with the exception of the period
from 1969 to 1978, when salaries for Representatives and Senators exceeded those
of district judges), salaries of district judges have generally risen before the salaries
of Representatives and Senators. Were Congress to de-link salaries, one might
expect a resumption of the pattern of judicial salaries rising first, followed by
congressional salaries. This pattern would mean Members of Congress might have
to consider their own salary increases as separate legislative items (rather than as part
of a broader salary package for officials across all three branches of government).
Pay parity is an important component of the debate over the salaries of federal
judges; should Congress decide to address the issue of judicial salary, it could choose
to consider the advantages and disadvantages of the practice of paying federal district
judges and Members the same salary. The three pieces of legislation introduced in
the 110^th Congress that offer substantial increases in the salaries of federal judges —
H.R. 3753, S. 1638, and S. 2353 — would, if enacted, end the practice of parity
between congressional and judicial salaries, as none currently contain language
increasing congressional salaries.
Locality Pay
Federal judges have, since 1891, been paid the same salaries regardless of the
location of their chambers or residences.⁶⁷ In contrast, General Schedule federal
employees across the country receive different salaries that depend on the location
of their duty station. Those who argue for higher salaries for federal judges often,
implicitly or explicitly, express concern that the same salary for all federal judges can
hamper the ability to recruit candidates for federal judgeships in areas of the country
where the cost of living is higher. For example, Justice Antonin Scalia reportedly
noted, in a December 2006 speech, “if you become a federal judge in the Southern
District of New York, you can’t raise a family on what the salary is.”⁶⁸

⁶⁵ U.S. Congress, House Committee on the Judiciary, Subcommittee on Courts, the Internet,
and Intellectual Property, Oversight Hearing on Federal Judicial Compensation, 110^th^st
Cong., 1 sess., April 19, 2007 (not yet printed) CQ Congressional Transcripts. Available
at [http://www.cq.com/committees.do].
⁶⁶ Wheeler and Greve, “How to Pay the Piper.”
⁶⁷ Judicial salaries before 1891 were based on the amount of work that Congress anticipated
federal judges in the different locations would perform. See [http://www.fjc.gov/history/
home.nsf/page /dc_bdy].
⁶⁸ Matthew Barakat, “Scalia Argues for Better Judicial Pay,” Associated Press, Dec. 13,
(continued...)

Congress might wish to consider taking into account the cost of living in
different regions of the country when determining the salaries that federal judges and
justices receive. Such action has historical precedent; before 1891, Congress
regularly paid different salaries to judges serving in different districts; in Illinois, for
example, judges on the Northern District of Illinois were paid an annual salary of
$4,000 from 1867 to 1890; over the same time period, judges on the Southern
District of Illinois were paid an annual salary of $3,500.⁶⁹
Locality pay for General Schedule employees is based on duty station, or where
the employee is assigned to work, and not residence. That may create unexpected
difficulties as applied to the judiciary, as judges have some freedom to choose where
to locate their chambers. Within a given judicial district or circuit, the judicial
council of each circuit may assign district judges to a particular location within each
district.⁷⁰ Circuit judges have greater latitude on where to locate their chambers and
typically travel to the same location (usually the location of the courthouse for the
circuit court, though panels occasionally hear cases at other courthouses in the circuit
and at other locations, including law schools) to hear oral arguments for one or two
weeks each month. Granting locality pay to judges may concentrate judges’
chambers in different areas of each district or circuit. For example, the Northern
District of Illinois has an Eastern Division (with a courthouse in Chicago) and a
Western Division (with a courthouse in Rockford). If Congress were to adopt the
same locality pay areas used by the Office of Personnel Management,⁷¹ judges with
chambers in Chicago would be paid more than judges with chambers in Rockford,
and judges whose chambers are in Rockford might seek to move their chambers to
Chicago, a higher-paying locality within the same judicial district.
Congress might choose to address this matter in several ways. First, it could
choose to do nothing. Second, it might choose to allocate judgeships within the
divisions of each district. Current federal law establishing the boundaries of the U.S.

⁶⁸ (...continued)
2006. As of Oct. 23, 2007, 40 of the 44 active and senior judges in the Southern District of
New York had chambers in Manhattan; the remaining four had chambers in White Plains.
⁶⁹ Federal Judicial Center, “Federal Judicial History: Salaries U.S. District Court by State.”
Available at [http://www.fjc.gov/history/home.nsf/page/salaries_USDC_states]. Illinois
added an Eastern District in 1905 (33 Stat. 992) and Congress reorganized the federal
judicial districts into their current configuration of Northern, Central, and Southern Districts
in 1978 (92 Stat. 883).
⁷⁰ 28 U.S.C. § 134 (c) reads: “If the public interest and the nature of the business of a district
court require that a district judge should maintain his abode at or near a particular place for
holding court in the district or within a particular part of the district the judicial council of
the circuit may so declare and may make an appropriate order. If the district judges of such
a district are unable to agree as to which of them shall maintain his abode at or near the
place or within the area specified in such an order the judicial council of the circuit may
decide which of them shall do so.”
⁷¹ Office of Personnel Management, “Locality Pay Area Definitions.” Available at
[http://www.opm.gov/oca/07tables/locdef.asp].

district courts⁷² dictates the counties which fall in each district and the locations at
which courts may be held. Congress might choose to allocate judgeships among the
divisions in a given district, which would limit the locations where judges may place
their chambers. Congress might also consider specifying the location of chambers
of court of appeals judges, who may place their chambers anywhere within the circuit
to which they are appointed.⁷³ Third, Congress might choose to offer the same pay
to every judge within a given district or circuit. Doing so, particularly for circuit
judges, may limit the effectiveness of locality pay because the geographical size of
some of the circuits is so large. Fourth, Congress might adopt a form of locality pay
that is not tied directly to the Office of Personnel Management’s locality pay
structure and better reflects the boundaries of judicial districts and the divisions
within those districts.
Revising Retirement Benefits
Federal judges who resign forgo judicial retirement, and it may be the case that
candidates for federal judgeships decline the opportunity to be nominated, in part,
because the salary and other compensation offered to federal judges cannot equal
those available to lawyers who remain in private practice. If Congress wishes to
address this issue, it might consider altering how federal judges qualify for judicial
retirement.
Judicial retirement is available to federal judges who meet the criteria of the
Rule of 80 and entitles federal judges to an annuity equal to their salary at the time
of their retirement when they depart active duty. Judges who take senior status
continue to receive the cost-of-living adjustments Congress authorizes for active
federal judges; since 1989, senior status judges have had to handle a caseload (or,
since 1996, comparable administrative work) equal to that of one-fourth of the work
of active judges in a given district or circuit in order to remain on senior status.⁷⁴
The retirement provisions for federal judges are generous relative to those for
other federal government positions in that very few other federal government
positions offer a retiree with as few as 10 years of service an annuity equal to the
employees’ salary upon retirement.⁷⁵ Any offer less generous to federal judges might
discourage federal judges from departing the bench while they are still healthy;
Congress first enacted judicial retirement provisions to encourage judges to depart

⁷² 28 U.S.C. §§ 81-131.
⁷³ 28 U.S.C. § 44 (c) imposes two restrictions on the residence (not the location of
chambers) of judges of the courts of appeals: that they reside within the circuit (or, in the
case of the D.C. Circuit Court of Appeals and the Court of Appeals for the Federal Circuit,
within 50 miles of the District of Columbia) and that “there shall be at least one circuit judge
in regular active service appointed from the residents of each state in that circuit.”
⁷⁴ 28 U.S.C. § 371. The 1989 amendments can be found at P.L. 101-194, 103 Stat. 1770
(Nov. 30, 1989); the 1996 amendments can be found at P.L. 104-317, 110 Stat. 3851 (Oct.

19, 1996).

⁷⁵ For a comparison to the retirement benefits of members of Congress, see CRS Report
RL30631, Retirement Benefits for Members of Congress, by Patrick Purcell.

while they retained their health.⁷⁶ Any other provision (e.g., a mandatory retirement
age for federal judges) would violate the Constitution’s provision that judges may
serve “during Good Behaviour” and may only lose their positions after impeachment
by the House and conviction by the Senate.
Current retirement provisions may be seen as generous from the perspective of
judges who have qualified for them, but may be seen as difficult to attain for federal
judges who face decisions about their financial futures before they are eligible for
retirement or senior status. Judge Paul G. Cassell, who resigned from the U.S.
District Court for the District of Utah in 2007, noted the issue of judicial pay in his
resignation letter:
I would like to ensure that my children will have the same educational
opportunities that I had. How to achieve that within the constraints on current
judicial pay is more than a difficult task. My wife and I have concluded that we
may not be able to do what we have always planned to do unless I make some⁷⁷
changes.
If Congress were concerned that potential federal judges bypass the opportunity
to serve as judges due to financial concerns, it could allow federal judges to earn
partial retirement after serving a certain period of time. The current system provides
judicial retirement under an “all-or-nothing” premise: judges either qualify for
judicial retirement, at the equivalent of full salary, or they do not. Congress may
consider allowing federal judges to receive a percentage of their annual salary if they
choose to resign or retire before qualifying for the Rule of 80. Doing so might
increase the number of people who express interest in serving as federal judges, but
might also increase the number of judges who depart office in mid- or late-career to
seek additional income from a job elsewhere in the federal government, in the private
sector, or in academia.
Of the legislation currently pending in Congress, H.R. 3753, as ordered reported
by the House Judiciary Committee, makes several changes to the system of judicial
retirement; none of the other pending pieces of legislation change judicial retirement
provisions. While leaving in place the “Rule of 80” for judges to take senior status,
H.R. 3753 and S. 1638 would require federal judges to meet a new “Rule of 84” if
they wished to retire. The Rule of 84 works much like the Rule of 80, as federal
judges’ age and years of service would have to add to 84 (starting with 67 years of
age and 17 years of service, ranging to 72 years of age and 12 years of service) in
order to retire and receive an annuity equal to the salary they were receiving at the
time they retired. Under S. 1638 and H.R. 3753, federal judges who retire and find
other employment would have their annuities reduced if their earned income exceeds
their annuity; for every $2 their earned income exceeds their annuity each year, the

⁷⁶ See, e.g., Artemus Ward, Deciding to Leave: The Politics of Retirements from the United
States Supreme Court (Albany: State University of New York Press), p. 73. The first
retirement provision for Supreme Court justices was part of the larger Judiciary Act of 1869
(16 Stat. 44, Apr. 10, 1869).
⁷⁷ Letter from Judge Paul G. Cassell, U.S. District Court for the District of Utah, to President
George W. Bush, Sep. 21, 2007. Accessed at [http://sentencing.typepad.com/
sentencing_law_and_policy/ files/ca ssell_presidentresign920fix.rtf].

annuity would be reduced by $1. This reduction would stop once it had reached

67%, so all retired federal judges would receive at least 33% of their annuity.

Survivor Benefits
Under the Judicial Survivors’ Annuities System (JSAS), “a judge’s eligible
spouse, former spouse, and/or dependent children are entitled to a survivor’s annuity
if a judge dies while in office or while receiving retirement compensation.”⁷⁸ As of
1999, active and senior status judges contributed 2.2% of their salary, and retired
judges contributed 3.5% of their retirement annuity, to the JSAS if they elected to
participate.⁷⁹ Judges who do not elect to participate receive no survivor benefit. A
judge’s survivors are eligible for an annuity between 25% and 50% of the judge’s
average annual salary, depending on how long the judge participated in the JSAS.
If Congress elects to consider revising the JSAS system, it might consider the
survivor benefits available to other federal employees under FERS and CSRS, and
the contributions made by employees under those programs, as a starting point.
Federal employees covered by FERS do not elect to participate and do not pay any
salary to qualify for survivor benefits. Covered federal employees under FERS and
CSRS, however, make contributions to retirement annuities and to any optional
retirement savings (including the Thrift Savings Plan, or TSP).⁸⁰

⁷⁸ Administrative Office of the U.S. Courts, Senior Status and Retirement for Article III
Judges, Judges Information Series No. 4 (Washington: Administrative Office of the U.S.
Courts, April 1999), p. 27.
⁷⁹ 28 U.S.C. § 376 (b)(1).
⁸⁰ Specifically, current federal employees covered by the Federal Employees Retirement
System (FERS) have a survivor benefit equal to 50% of their annual basic pay plus a lump
sum payment ($27,461 in 2007; the value is adjusted annually at the same rate the Consumer
Price Index changes). Surviving spouses of federal employees with at least 10 years of
service receive a lump sum and an annuity equal to 50% of the annuity that the employee
has earned at the time of his or her death. Retired federal employees who have joint and
survivor annuities may choose to reduce their annuities by 10% in order to guarantee a
survivor benefit equal to 50% of their annuity (before the 10% reduction) should they die
before their spouses. Retired federal employees may also choose to reduce their annuities
by 5% in order to guarantee a survivor benefit equal to 25% of their annuity (before the 5%
reduction). Federal employees hired into permanent federal employment on or after Jan. 1,
1984, are covered by FERS, as are employees working before that date who opted to be
covered by FERS; different retirement benefits apply to federal employees covered by the
Civil Service Retirement System (CSRS). CRS Report RS21029, Survivor Benefits for
Families of Civilian Federal Employees and Retirees, by Patrick Purcell.

Outside Income Limits
The Ethics Reform Act of 1989 imposed limits on the amount of outside income
federal judges may earn.⁸¹ The Ethics Reform Act limits government officials whose
position is classified above GS-15 of the General Schedule (or, for positions outside
the General Schedule, those positions where the base pay equals or exceeds 120% of
the minimum pay for GS-15) from having outside earned income exceeding “15
percent of the annual rate of basic pay for Level II of the Executive Schedule.”⁸² In
2008, federal employees covered by this provision, including federal judges, may
earn no more than $25,830 in outside income.⁸³ Federal officials, including federal
judges, are also not permitted to receive honoraria for speeches, appearances, or
articles. Federal judges are also expected to comply with the Code of Judicial
Conduct. In particular, judges are permitted to engage in extra-judicial activities that
improve the administration of justice, but are expected to avoid extra-judicial
activities that may create risk of conflict with judicial duties. Perhaps most relevant,
the Code of Judicial Conduct creates an expectation that judges regularly report
outside compensation for law-related and extra-judicial activities.⁸⁴
Before 1989, there was no restriction on the amount of outside earned income
federal judges could earn. This freedom may have allowed federal judges to
supplement their salaries, but it also caused considerable controversy. Controversy
surrounding outside income adversely affected the unsuccessful nomination of Abe
Fortas to be Chief Justice in 1968 and played a secondary role in the failed
nomination of Clement Haynsworth to be an Associate Justice of the Supreme Court
in 1969.⁸⁵
Congress might choose to consider altering the limits on how much outside
income federal judges may earn. Easing the limits might encourage federal judges
to remain in active service for longer periods of time and may encourage individuals
to serve in the federal judiciary who were otherwise reluctant to do so.
Congress might also choose to leave the restrictions on outside income in place.
It does not appear that the imposition of outside income limits in 1989 caused federal
judges to depart in numbers that exceeded historical patterns. According to the data

⁸¹ The outside earned income restrictions of the Ethics Reform Act do not apply to Supreme
Court justices. S. 1638, as reported by the Senate Judiciary Committee, would apply those
limits to Supreme Court justices.
⁸² 5 U.S.C. App. § 501(a). Federal judges who have retired from active service may receive
income from teaching that is not subject to the 15% limitation. See 5 U.S.C. App. § 502(b).
⁸³ Several forms of compensation, including deferred compensation and funds received from
investments that do not require “significant personal services,” are not considered to be
“outside income.” See “Commentary” on 5 U.S.C. App. §§ 501-505 at
[http://www.uscourts.gov/library/conduct_outsideemployment.html ].
⁸⁴ Code of Judicial Conduct for United States Judges. Available at
[http://www.uscourts.gov/guide/vol2/ch1.html ].
⁸⁵ John P. Frank, “Conflict of Interest and U.S. Supreme Court Justices,” The American
Journal of Comparative Law, vol. 18, no. 4 (Autumn 1970), pp. 753-759.

presented in Figures 2 and 3, above, imposition of the restrictions on outside income
did not appear to affect the number of judges who resigned or the number of judges
who retired rather than taking senior status. The proportion of judges who left active
service by resignation was lower between 1989 and 1992 than between 1985 and
1988; the proportion of judges who retired rather than taking senior status rose
slightly between 1985-1988 and 1989-1992 (to 5.41% from 4.95%) following
enactment of the outside income limits in the Ethics Reform Act of 1989.
S. 1638, as reported by the Senate Judiciary Committee, would limit the
reimbursable seminar-related travel for federal judges to $2,000 per trip and $20,000
per year, with exceptions for events approved by the State Department and those
sponsored by the federal government, state governments (not including public
educational institutions), bar associations, and the National Judicial College. S. 1638
would also prohibit the acceptance of honorary memberships valued at more than $50
per year, and apply the regulations of the Judicial Conference on outside earned
income to justices of the U.S. Supreme Court.
Citizens’ Commission on Public Service and Compensation
The Ethics Reform Act of 1989 created the Citizens’ Commission on Public
Service and Compensation that was designed to replace the Quadrennial Commission
(which was composed of individuals from the private sector who recommended
salary levels for Members of Congress, federal judges, and several executive branch⁸⁶
officials). The Citizens’ Commission was to consist of 11 private citizens who
would meet once every four years and recommend to the President the rates of pay
for Members of Congress, the Vice President, Executive Schedule Level II
employees, federal judges and justices, and governors of the Federal Reserve.⁸⁷ The
President was to review the recommendations of the commission and then transmit
his own recommendations, which would be based on what “the President considers
to be fair and reasonable in light of the Commission’s report and recommendations,
the prevailing market value of the services rendered in the offices and positions
involved, the overall economic condition of the country, and the fiscal condition of
the Federal Government.”⁸⁸ Those recommendations would then be considered by
Congress. This process was intended to augment the method by which annual pay
adjustments are made (the December-to-December change in the Employment Cost
Index, less 0.5%).

⁸⁶ The Quadrennial Commission was created in 1967. One of the primary differences
between the system in place between 1967 and 1989 and the Citizens’ Commission was that,
in the earlier arrangement, the recommendations made by the President (after reviewing the
Quadrennial Commission’s recommendations) went into effect unless Congress stopped
them from doing so. By contrast, recommendations made by the President after reviewing
the Citizens’ Commission recommendations would go into effect only if Congress approved
them.
⁸⁷ 2 U.S.C. § 356.
⁸⁸ 2 U.S.C. § 358 (1).

The Citizens’ Commission on Public Service and Compensation, however, has
never met.⁸⁹ Accordingly, neither the President nor Congress has had the
recommendations of the Citizens’ Commission to structure discussion on salary for
certain federal employees (including federal judges). Congress may wish to convene
the Citizens’ Commission to guide its deliberations on judicial salaries and the
salaries of other federal officials. If Congress were to convene the Citizens’
Commission, salary recommendations would be regularly presented to Congress by
the President, with the intent of regular increases in salary. In a 2002 letter to Paul
Volcker, chairman of the National Commission on Public Service, L. Ralph
Meacham, director of the Administrative Office of the U.S. Courts, argued that
Congress and the President intended for the Citizens’ Commission, created as part
of the Ethics Reform Act of 1989, to “provide top government officials with regular
increases that would alleviate the future need for major ‘catch up’ adjustments of the
type enacted in 1989.”⁹⁰ Meacham further argued that the failure of the commission
to meet meant that “Judges (as well as other high-level government officials) have
received only four cost-of-living salary adjustments since January 1993. What this
means is that since 1993 [until 2002], the annual cost-of-living salary adjustments for
these officials have averaged only about one percent.”⁹¹
Automatic Adjustments for Judicial Salary
Congress might also choose to consider changing how cost-of-living
adjustments are made to judges’ salaries. The annual automatic recommendation for
salaries of Members of Congress and federal judges is the December-to-December
change in the Employment Cost Index for private-sector wages, reduced by 0.5%.
In addition, the rate of adjustment for judicial, congressional, and executive officials
whose salaries are covered by the Ethics Reform Act of 1989 can be no greater than
the rate of adjustment for General Schedule (GS) employees.⁹² Under current law,
Congress must enact legislation each year to allow judges’ salaries to change.⁹³ The
salaries of Members of Congress, on the other hand, increase unless Congress acts
to prevent the scheduled increase from taking effect.⁹⁴ Congress, however, might
consider changing the law, to allow judges’ salaries to increase automatically without
the requirement of an authorization by Congress for each such increase.
Doing so might allow judicial salaries to increase more frequently than they
have since the current method of recommending and adopting judicial and

⁸⁹ Congress never appointed its members to the commission and no money has been
appropriated for the Commission. Letter from L. Ralph Meacham, director, Administrative
Office of the U.S. Courts, to Paul Volcker, chairman, National Commission on Public
Service, June 14, 2002. Available at [http://www.uscourts.gov/newsroom/Volcker.pdf].
⁹⁰ Ibid.
⁹¹ Ibid. Parentheses in original.
⁹² P.L. 101-194, 103 Stat. 1769 (Nov. 30, 1989).
⁹³ P.L. 97-92 § 140 , 95 Stat. 1200 (Dec. 15, 1981), amended by P.L. 107-77, 115 Stat. 803
(Nov. 28, 2001). See 28 U.S.C. § 461 note.
⁹⁴ P.L. 101-194, 103 Stat. 1769. (Nov. 30, 1989).

congressional salaries was implemented in 1989. Changing the mechanism by which
judicial salaries are adjusted to account for changes in cost-of-living, however, might
not translate into more frequent increases in judicial salary, if Congress chooses to
continue the practice of pay parity between judicial and congressional salaries.
Should Congress choose to continue this practice, and should Congress occasionally
choose to reject recommended adjustments to congressional and judicial salaries,
judicial salaries will likely continue to fall relative to the salaries of private-sector
workers.
H.R. 3753, as reported by the House Judiciary Committee, and S. 1638, as
reported by the Senate Judiciary Committee, would raise judicial salaries each year
by the base rate increase given to General Schedule employees. Doing so would
effectively automate the process by which federal judges currently receive cost-of-
living adjustments, as the default adjustment to the General Schedule is the
December-to-December change in the Employment Cost Index, less 0.5%,⁹⁵ though
the President may adjust this recommendation.⁹⁶
Legislation in the 110^th Congress
Four pieces of legislation pending in the 110^th Congress deal with judicial
salary. S. 197, passed by the Senate on January 8, 2007, and pending before the
House, authorizes the enactment of the 1.7% increase in judicial salary that was
recommended under the procedures outlined in the Ethics Reform Act of 1989.
Three other pending pieces of legislation — S. 1638, S. 2353, and H.R. 3753
— would provide federal judges with much larger raises. Table 3 provides a side-
by-side comparison of the three pieces of legislation.
Table 3. Side-By-Side Comparison of Current Federal Judicial
Salaries and Proposed Salaries Under S. 1638, S. 2353, and H.R.

3753 (110^th Congress)

H.R. 3753 and S.
S. 2353 1638
Current(% Increase over(% Increase over
Judges Sal ary Current) Current)
District Court Judges$169,300$197,200 (16.5%)$218,000 (28.8%)
Court of International$169,300$197,200 (16.5%)$218,000 (28.8%)
Trade Judges
Court of Appeals$179,500$209,100 (16.5%)$231,100 (28.7%)

Judges
⁹⁵ 5 U.S.C. § 5303 (a).
⁹⁶ 5 U.S.C. § 5303 (b).

H.R. 3753 and S.
S. 2353 1638
Current(% Increase over(% Increase over
Judges Sal ary Current) Current)
Supreme Court$208,100$242,400 (16.5%)$267,900 (28.7%)
Associate Justices
Chief Justice$217,400$253,300 (16.5%)$279,900 (28.7%)
^Source:^{Data f}^o^{r cu}^rrent^s^a^laries^prov^{ided by}^th^{e Federal J}^u^{dicial C}^eⁿ^t^{er, av}^{ailable at}
^[^h^t^t^p^:^/^/^www.^f^j^c^.^g^o^v^/^hⁱ^s^t^o^r^y^/^h^o^me^.ⁿ^s^f^/^p^a^g^e^/^s^a^l^a^rⁱ^e^s^_bdy^{]. D}^a^t^a^f^o^{r propos}^{ed s}^a^l^a^ri^es^f^r^om^t^e^x^t^of
^legⁱ^s^l^ation^.^P^e^rcen^tag^eⁱⁿ^creas^es^f^o^{r S. 1638 an}^{d H.R}^.^{3753 v}^a^ry^acros^s^pos^ition^s^du^{e to}^rouⁿ^dⁱⁿ^g^.
^T^h^{e s}^a^l^a^ry^l^e^v^e^l^s^w^e^{re es}^t^a^blⁱ^s^h^e^{d rel}^a^tⁱ^v^{e t}^o^{2007 s}^a^l^a^ri^es^{, w}^hⁱ^c^hⁱⁿ^creas^{ed by}^2.5%ⁱⁿ^2008.
If adopted, the new salary levels proposed by S. 1638 and H.R. 3753 would be
the highest real salaries federal judges have received since at least 1913. In 1969,
currently the year with the highest real salaries for federal judges since at least 1913,
district court judges received real salary of $210,570; court of appeals judges
received a real salary of $222,018.⁹⁷ Without endorsing any specific proposals, the⁹⁸
Bush Administration has indicated its support for raising judicial salaries.
S. 2353, which has been referred to the Senate Judiciary Committee, provides
immediate increases in salary to federal judges; however, it makes no other changes
to the compensation practices for federal judges. H.R. 3753, as ordered reported by
the House Judiciary Committee, and S. 1638, as reported by the Senate Judiciary⁹⁹
Committee, allow for annual salary adjustments for federal judges equal to the
change in the base rate of pay for General Schedule employees. H.R. 3753 and
S.1638 would also change the workload of judges in senior status, requiring that they
perform the equivalent of four months of the work of an active judge in a given year,
whereas the current requirement is a work equivalent of three months a year. H.R.
3753 and S. 1638 also include two changes to retirement (as opposed to senior
status). While federal judges will still be able to take senior status under the Rule of
80, eligibility to retire will be governed by a new Rule of 84, where age and years of
service, starting with 67 years old and 17 years of service, must add to 84 for a
federal judge to retire and receive an annuity equal to their salary at time of
retirement. Judges who retire and whose earned income after retirement exceeds the

⁹⁷ In 1969, the real salary of the associate justices of the Supreme Court was $310,821; for
the Chief Justice of the Supreme Court, the real salary was $322,725. As noted above, these
values are adjusted to reflect that judicial salaries were changed effective March 1, 1969;
these values report the amount of salary a federal judge serving in active status in 1969
would have received in salary in the 1969 calendar year. Comparisons to the real values
outlined in Table 1 should keep in mind that the real values may change depending on the
effective date of any legislation on judicial salary enacted by Congress.
⁹⁸ Letter from Rob Portman, director, Office of Management and Budget, to Rep. John
Conyers, chair, House Judiciary Committee, Apr. 19, 2007. Available at
[http://www.uscourts.gov/j udicial compensation/OMBletter.pdf].
⁹⁹ See U.S. Congress, Senate Committee on the Judiciary, Federal Judicial Salary
Restoration Act of 2008, report to accompany S. 1638, 110^th Cong., 2^nd sess., S.Rept. 110-

277 (Washington: GPO, 2008), 22 p.

amount of their retirement annuity would find that annuity reduced by $1 for every
$2 they earn above the level of their annuity. This reduction could affect no more
than 67% of their annuity, and the calculation is made annually, so the annuity could
be restored to its full value if a retired judge stops earning outside income in excess
of his or her annuity. S. 1638 also includes a provision that restricts the reimbursable
seminar-related travel for federal judges to $2,000 per trip and $20,000 per year
(these values would be indexed to inflation), with exceptions for events approved by
the State Department and those sponsored by the federal government, state
governments (not including public educational institutions), bar associations, and the
National Judicial College. S. 1638 also limits the acceptance of honorary
memberships to those valued at no more than $50 per year and applies the
regulations of the Judicial Conference on outside earned income to justices of the
U.S. Supreme Court.

CRS-40
Appendix 1. Number of Judgeships, Vacancies, Active Judges, Departures from Active Service, and Method of
Departure for Article III U.S. District Courts, Court of International Trade, and U.S. Courts of Appeals, 1985-2007
Total Active^cNumber of Active Judges Departing Via:^d
YearJudgeships^aVacancies^bJudgesSenior StatusDeathResignationRetirementOther
1985 748 102 646 26 3 2 0 0
1986 748 55 693 32 4 1 3 1
1987 748 55 693 18 4 3 2 0
1988 748 48 700 20 6 2 0 0
1989 748 40 708 29 3 3 0 2
ⁱ^{ki/CRS-RL34281}1990 833 61 772 24 2 3 1 01991 833 125 708 43 1 1 5 0
^g/w1992 833 131 702 44 0 1 2 0
^s^.or1993 833 109 724 23 4 3 0 0
^le^ak
1994 833 100 733 38 3 1 1 0
^://wiki1995 833 70 763 30 3 0 1 0
^h^ttp1996 831 50 781 55 4 0 3 0
1997 830 93 737 32 0 0 0 0
1998 830 86 744 31 3 0 2 0
1999 839 59 780 23 5 1 1 0
2000 849 76 773 33 4 0 3 0
2001 849 80 769 37 1 3 1 0
2002 849 97 752 23 2 3 2 0
2003 868 60 808 30 7 1 0 0
2004 866 45 821 23 4 1 1 0
2005 866 37 829 27 0 2 1 0

2006 866 49 817 32 2 2 0 0

CRS-41
Total Active^cNumber of Active Judges Departing Via:^d
YearJudgeships^aVacancies^bJudgesSenior StatusDeathResignationRetirementOther
2007 866 56 810 22 2 3 0 0
Total — — — 6956736293
^C^R^S^an^aly^s^is^of^{data prov}^{ided by}^th^{e A}^d^mⁱⁿⁱ^s^t^rativ^{e Of}^fⁱ^{ce of}^{U.S. C}^o^u^r^ts^an^{d th}^{e Federal J}^u^{dicial C}^eⁿ^t^er.
^u^m^b^{er of}^j^u^dg^es^hⁱ^ps^deri^v^e^{d f}^r^om^dat^a^provⁱ^d^{ed by}^t^h^{e A}^d^mⁱⁿⁱ^s^t^ratⁱ^v^{e O}^f^fⁱ^{ce of}^t^h^{e U}^.^S^.^C^o^u^r^t^s^.
^m^b^{er of}^v^acan^cies^as^of^J^aⁿ^.^{1 of}^each^y^ear.
^m^b^{er of}^activ^{e j}^u^dg^es^w^a^s^calcu^{lated by}^s^u^btractin^gⁿ^u^m^{ber of}^v^acan^cies^f^r^omⁿ^u^m^{ber of}^au^th^{orized j}^u^dg^es^hⁱ^ps^.
^O^th^{er” departu}^r^esⁱⁿ^clu^d^{e j}^u^dg^es^w^h^{o w}^e^{re im}^peach^{ed an}^{d co}ⁿ^vⁱ^{cted, an}^{d j}^u^dg^es^w^h^os^{e reces}^s^appoin^t^m^eⁿ^t^ex^{pired w}^ith^ou^{t S}^eⁿ^a^{te co}ⁿ^f^ir^m^a^tioⁿ^.^Elev^a^tⁱ^oⁿ^s^t^o^o^t^h^e^r^p^o^s^itioⁿ^s
ⁱⁿ^th^{e j}^u^diciary^,ⁱⁿ^clu^dⁱⁿ^g^{to th}^{e Su}^prem^{e C}^o^u^r^{t, w}^e^{re n}^o^{t con}^s^{idered departu}^r^es^.

ⁱ^{ki/CRS-RL34281}
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^s^.or
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CRS-42
Appendix 2. Nominal and Real Salaries for U.S. District Court and Court of Appeals Judges, 1955-2006
YearDistrict Court JudgesCourt of Appeals JudgesAverage Wage EarnerNominal SalaryReal Salary^aNominal SalaryReal Salary^aNominal SalaryReal Salary^a
1955 $22,500 $169,254 $25,500 $191,821 $3,301 $24,835
1956 $22,500 $166,765 $25,500 $189,000 $3,532 $26,181
1957 $22,500 $161,424 $25,500 $182,947 $3,642 $26,127
1958 $22,500 $156,955 $25,500 $177,882 $3,674 $25,628
1959 $22,500 $155,876 $25,500 $176,660 $3,856 $26,712
1960 $22,500 $153,244 $25,500 $173,676 $4,007 $27,292
1961 $22,500 $151,706 $25,500 $171,933 $4,087 $27,555
ⁱ^{ki/CRS-RL34281}1962 $22,500 $150,199 $25,500 $170,225 $4,291 $28,647
^g/w1963 $22,500 $148,235 $25,500 $168,000 $4,397 $28,966
^s^.or1964 $30,000 $195,096 $33,000 $214,606 $4,576 $29,761
^le^ak1965 $30,000 $192,000 $33,000 $211,200 $4,659 $29,816
^://wiki1966 $30,000 $186,666 $33,000 $205,333 $4,938 $30,728
^h^ttp1967 $30,000 $181,078 $33,000 $199,186 $5,213 $31,468
1968 $30,000 $173,793 $33,000 $191,172 $5,572 $32,278
1969 $38,333 $210,570 $40,417 $222,018 $5,894 $32,376
1970 $40,000 $207,835 $42,500 $220,825 $6,186 $32,143
1971 $40,000 $199,112 $42,500 $211,556 $6,497 $32,341
1972 $40,000 $192,919 $42,500 $204,976 $7,134 $34,406
1973 $40,000 $181,622 $42,500 $192,973 $7,580 $34,418
1974 $40,000 $163,570 $42,500 $173,793 $8,031 $32,840
1975 $42,000 $157,383 $44,600 $167,126 $8,631 $32,342
1976 $44,000 $155,894 $46,800 $165,815 $9,226 $32,690

1977 $52,750 $175,485 $55,717 $183,356 $9,779 $32,183

CRS-43
YearDistrict Court JudgesCourt of Appeals JudgesAverage Wage EarnerNominal SalaryReal Salary^aNominal SalaryReal Salary^aNominal SalaryReal Salary^a
1978 $57,500 $177,792 $60,700 $187,686 $10,556 $32,640
1979 $61,500 $170,777 $65,000 $180,496 $11,479 $31,877
1980 $67,100 $164,167 $70,900 $173,464 $12,513 $30,615
1981 $70,300 $155,913 $74,300 $164,784 $13,773 $30,546
1982 $73,100 $152,715 $77,300 $161,489 $14,531 $30,358
1983 $73,100 $147,962 $77,300 $156,463 $15,239 $30,846
1984 $76,000 $147,465 $80,400 $156,002 $16,135 $31,307
1985 $78,700 $147,453 $83,200 $155,884 $16,823 $31,519
1986 $78,700 $144,762 $83,200 $153,039 $17,322 $31,862
ⁱ^{ki/CRS-RL34281}1987 $88,100 $156,007 $93,450 $165,481 $18,427 $32,630
^g/w1988 $89,500 $152,520 $95,000 $161,893 $19,334 $32,948
^s^.or1989 $89,500 $145,510 $95,000 $154,452 $20,100 $32,678
^le^ak1990 $96,600 $149,002 $102,500 $158,103 $21,028 $32,435
^://wiki1991 $125,100 $185,170 $132,700 $196,419 $21,812 $32,285
^h^ttp1992 $129,500 $186,081 $137,300 $197,289 $22,935 $32,956
1993 $133,600 $186,393 $141,700 $197,694 $23,133 $32,274
1994 $133,600 $181,739 $141,700 $192,758 $23,754 $32,313
1995 $133,600 $176,731 $141,700 $187,446 $24,706 $32,682
1996 $133,600 $171,662 $141,700 $182,070 $25,914 $33,297
1997 $133,600 $167,812 $141,700 $177,986 $27,426 $34,449
1998 $136,700 $169,072 $145,000 $179,337 $28,861 $35,696
1999 $136,700 $165,418 $145,000 $175,462 $30,470 $36,871
2000 $141,300 $165,425 $149,900 $175,493 $32,155 $37,645
2001 $145,100 $165,174 $153,900 $175,191 $32,922 $37,476
2002 $150,000 $168,093 $159,100 $178,291 $33,252 $37,263

2003 $154,700 $169,497 $164,000 $179,687 $34,065 $37,323

CRS-44
YearDistrict Court JudgesCourt of Appeals JudgesAverage Wage EarnerNominal SalaryReal Salary^aNominal SalaryReal Salary^aNominal SalaryReal Salary^a
2004 $158,100 $168,729 $167,600 $178,868 $35,649 $38,045
2005 $162,100 $167,329 $171,800 $177,342 $36,953 $38,145
2006 $165,200 $165,200 $175,100 $175,100 $38,651 $38,651
Median $68,700 $167,047 $72,600 $178,139 $13,143 $32,299
Mean $76,957 $168,428 $81,975 $181,187 $15,550 $32,142
^J^u^dⁱ^cⁱ^a^l^s^a^l^a^r^y^d^a^t^a^p^r^o^vⁱ^d^e^d^b^y^t^h^e^F^e^d^e^r^a^l^J^u^dⁱ^cⁱ^a^l^C^eⁿ^t^e^r^,^a^v^aⁱ^l^a^b^l^e^a^t^[^h^t^t^p^:^/^/^www.^f^j^c^.^g^o^v^/^hⁱ^s^t^o^r^y^/^h^o^me^.ⁿ^s^f^/^p^a^g^e^/^s^a^l^a^rⁱ^e^s^_^bdy^{]. F}^o^{r s}^p^eci^fⁱ^{c dat}^e^s^of^pay^adj^u^s^t^m^eⁿ^t^s^,^s^e^e
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ⁱ^{ki/CRS-RL34281}^g^{a y}^{ear, th}^{e s}^a^laries^w^e^{re calcu}^{lated bas}^e^{d on}^th^{e s}^a^lary^j^u^dg^es^receiv^e^{d f}^o^{r each}^portion^of^th^{e y}^{ear. T}^h^is^af^f^ects^cal^cu^l^a^tⁱ^oⁿ^s^f^o^{r 1969, 1977, an}^{d 1987. In}^{1987, f}^o^{r ex}^am^pl^e,
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