Case of the Bench vs. the Buck

By Bennett H. Beach

Pinched by inflation, federal judges look for a raise

Six years ago, Sidney Smith, then 50, seemed to be living out an American dream. He had been serving for nine years as a federal district judge in Atlanta. The job offered challenge, prestige, a $40,000 salary and lifetime tenure followed by retirement at full pay. Yet that year Smith walked away from the bench to return to the private practice of law. The main reason: money. "I had one child in prep school and two in college, and I was borrowing all the time," recalls Smith, who now earns far more than he used to. "Inflation just started eating away at me."

Smith is not alone. During the 1970s, a record 24 federal district and circuit court judges (of more than 600) stepped out of their robes, compared with eight in the '60s and seven in the decade before that. The trend has brought warnings from the legal establishment that the nation's treasured federal bench is in danger of losing its luster. Observers fret not only about the increased number of departures but also about the erosion of morale among those who remain. An equally distressing, although incalculable effect is the possible decrease of top candidates for judicial openings.

Several considerations may be involved in judges' decisions to resign. Some have left to take top posts in the Executive Branch, among them FBI Director William Webster and Secretary of Education Shirley Hufstedler. Others have cited such reasons as a burgeoning case load, understaffing and the staleness known as "the judicial blahs." But economic woes are considered by far the most pressing. In 1969, when trial judges were earning $40,000 and appeals court judges $42,500, there were few complaints. But over the past eleven years, the cost of living has surged 131% while salaries have risen only about 35%, to $54,500 at the trial level and $57,500 in the appeals courts. These paychecks still put judges among the top 5% of U.S. wage earners. But the judges point to figures showing that the average 50-year-old lawyer working for a medium-size or large private firm makes $150,000. Even a junior partner in such firms, who may be no more than eight years beyond a clerkship for a federal judge, can equal or top the judge's earnings.

In 1975 Congress passed a bill providing for annual cost of living adjustments for high-level federal employees. But Congress has voted down raises four of the six years the law has been in effect. An added chance for raises comes every fourth year, when a nine-member Commission on Executive, Legislative and Judicial Salaries convenes to review salaries of high-level federal officials and recommend adjustments to the President, who takes them into account in drafting his budget message. Richard Nixon's 1973 proposal for a 7.5% judicial increase went nowhere, but Gerald Ford had more success in 1977, when Congress approved 30% raises for the bench (but only 14% for Supreme Court Justices).

That was too little too late to suit many critics. Earlier this month several leaders of the legal community assembled in the Cash Room of the Treasury Department to enter their pleas before the quadrennial salary commission. Some of the testimony was melodramatic. Said Federal District Court Judge Charles Joiner: "I speak to you of naked and defenseless men and women." Many jurists, added Circuit Court Judge Irving Kaufman, will be reduced to writing letters asking "how they might tell their children that they cannot afford to send them to college." Other spokesmen have been somewhat more restrained. "We ask judges to be purer than Caesar's wife, but we don't pay them what they are worth," says Harold Tyler, a partner in a New York law firm (and former district judge) who now heads an American Bar Association (A.B.A.) committee on federal judicial compensation. "They are the guardians of our Constitution."

Whatever the commission and President Carter may recommend, Congress is notoriously wary of voting federal pay increases, particularly at a time like this, with an anti-Government mood sweeping the nation. An additional obstacle on Capitol Hill is the reluctance to approve salaries higher than the $60,662.50 received by the Senators and Representatives themselves. Certainly nothing like the $97,000 figure urged by the A.B.A. is expected to pass. With this in mind, many judges have decided to contest the issue on their own turf and do their own umpiring. A group of them have sued the Government for back pay, claiming that Congress's refusal to pay the annual cost of living increases violated a constitutional guarantee that judges' compensation "shall not be diminished during their continuance in office." This theory has succeeded in the lower courts, and the final word may come from the Supreme Court by the end of its term next summer.

Meanwhile, widespread skepticism persists about the judges' cause. Regional variations in the cost of living make judicial salaries look more than adequate to many Americans, especially away from the big cities where private lawyers' six-figure salaries provide a perspective. One congressional aide expresses this "rural factor" by saying: "In Montana, $60,000 still goes a long way." Others warn that a judiciary that is too well rewarded loses touch with the society it is serving. Two recent vacancies on the D.C. Court of Appeals attracted a pool of more than 90 applicants, many of them highly qualified, and even Harold Tyler admits that the quality of the federal judiciary has not suffered yet. Nor does the rising dropout rate unnerve some observers who are familiar with high Government turnover. Says Alfred Zuck, executive director of the quadrennial salary commission: "The numbers are large only in relation to history." In all, the judges have a long way to go to prove their case, and they face a tough jury.

--By Bennett H. Beach Reported by Evan Thomas

With reporting by Evan Thomas

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