FedSoc Blog

Are Federal Judges Retiring Too Early?


by Publius
Posted February 22, 2013, 2:13 PM

Stephen L. Carter, professor at Yale Law School, writes at Bloomberg:

Pope Benedict XVI’s announcement that he will step down at the end of this month has prompted some commentators to wonder why we don’t encourage U.S. federal judges to retire early, too. Actually, we do -- and too many are.

For years, judges have complained about their pay. The Ethics Reform Act of 1989 provided for annual cost-of-living increases for judges and members of Congress. Political pressures have frequently driven Congress to suspend its own pay adjustments; when it does so, it generally suspends those of judges, as well. This bizarre but by now almost automatic coupling has had unfortunate constitutional consequences.

The simplest way to understand the problem is that the framers of the Constitution expected judges to serve for life. They did not expect the same of legislators. Serving in the legislature was not considered a career position; it was not even considered a full-time job. Despite the changes in the nature of the work, we see echoes of this constitutional division in the simple fact that when a senator or representative decides not to seek re-election and enters the private sector, no one thinks the choice in the least peculiar. When a federal judge does it, we feel uneasy. 

The problem isn’t going away. A recent survey asked retired federal judges why they stepped down. Although judges leave for complex reasons, the most common explanation was a desire to earn additional income.

“Grossly inadequate salary is demeaning and necessitated my retirement,” one judge wrote. “Had judges been fairly compensated I never would have retired.” Another was even more blunt: “Had Congress kept its promise of $125,000 in constant 1989 dollars, I would still be on the bench.”

Some context: $125,000 in 1989 dollars would be about $228,000 in 2012 dollars. A federal district judge currently receives an annual salary of $174,000. To most Americans, that probably sounds like a lot of money. But there are literally hundreds of executive-branch employees who earn more. So do first-year associates at many large law firms.

By effectively cutting judicial compensation -- and make no mistake, that is what has happened -- Congress is reducing the incentives to remain on the bench for life. The framers would have been appalled. . . .



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