Law Clerk Cost-Cutting Has Judges Up in Arms

A confidential salary cost-containment report now making the rounds among federal judges would limit judges to a single career law clerk, curtail clerk vacation pay and cap career clerk salaries. Despite a projected savings of $223 million to $280 million over the next decade, the report has plenty of judges hopping mad and some have disputed the savings claims. And the report concludes the savings would fall short of eliminating the expected $788 million shortfall for all court costs over the next decade.

Pamela A. MacLean

The National Law Journal

2007-09-04 12:00:00 AM

A confidential salary cost-containment report currently making the rounds among federal judges would limit judges to a single career law clerk, curtail clerk vacation pay and cap career clerk salaries.

Despite a projected savings of $223 million to $280 million over the next decade, the report has plenty of judges hopping mad, and some have disputed the savings claims. And the report concludes the savings would fall short of eliminating the expected $788 million shortfall for all court costs over the next decade.

The recommendations would curtail the judges' freedom to hire lifetime clerks as of Oct. 1, 2007, create performance guidelines, limit vacation pay for term law clerks and replace matching pay to experienced law clerks who leave private practice with pay parity based on experience.

"This would interfere with judges' ability to produce the best opinions," said Judge Consuelo "Connie" Callahan, of the 9th U.S. Circuit Court of Appeals in Sacramento, Calif. "There is a big difference between hiring people just out of law school and those with a lot of experience," she said.

Callahan sent a letter signed by 22 other judges to the Committee on Judicial Resources, which will present the report to the Judicial Conference of the United States, the policy arm of the federal courts. Similar efforts are going on in other circuits, she said.

The Judicial Conference will make the report public on Sept. 18.

SLOWING COSTS

The goal of the proposed changes is "to moderate the accelerating cost trends in chambers and to slow growth in staff costs ... " states the report, written by U.S. District Judge Royal Furgeson Jr., who sits in San Antonio and is chair of the resources committee. He did not return a call seeking comment.

Traditionally, federal judges have hired term law clerks, usually students just out of law school, to work one or two years. Increasingly, more experienced lawyers have been hired as career clerks, who stay permanently with judges. They provide continuity to complex cases as well as accumulated expertise, but they also require ever-rising pay. A career clerk receives, on average, $105,000 annually, which creeps up over time with raises, while term clerks are paid $71,000 for a year, then leave.

A decade ago there were 769 career law clerks, with a total annual salary cost of $55 million. The number by the last budget had doubled to 1,514 career clerks at a cost of $159 million, according to the report. The Administrative Office of the U.S. Courts reports that the figure continues to grow, with 1,650 career clerks today and 2,336 term law clerks.

Current rules allow appellate judges five staff members in any combination of secretaries, term law clerks and career clerks. District judges may have three staff members.

The growth in use of career clerks over the years has also increased disparity in cost between chambers, within districts and circuits.

DRAMATIC COMPARISONS

The report has produced some stunning cost comparisons between one judge's chambers and another when the use of career clerks is factored in. Without naming a specific court, the report found one district judge spending $69,000 to run chambers, while another judge in the same district spent nearly five times as much, or $336,000 annually.

At the circuit level, the least costly appellate judge in one circuit spent $133,000 annually to run chambers, while the most expensive spent triple that, $410,000, in the same circuit.

"The proper resolution of these issues is to limit each chambers to one career law clerk in an effort to contain ... compensation growth, to narrow the disparity of costs from chambers to chambers and to bring greater equity among chambers ... ," the report states.

Callahan, who came out of the state appellate system, said that the California courts operate with permanent staff. "We don't have time to go through the hiring process and bring people up to the level we need only to rotate them out in two years," she said.

By contrast, U.S. District Judge Charles Breyer in San Francisco addressed the issue from the bench at the start of a court session last week. He suggested that career clerks were overused and that young term clerks go on to serve as ambassadors for the judiciary and provide new insights and fresh views on recurring issues.