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As every lawyer knows, judges play a unique and demanding role in our justice system. Part scholar, part umpire, they assure that the law is applied fairly and impartially every day, whether the case involves traffic, torts or questions of constitutional law. Yet as a society, we are doing a poor job of investing in our federal courts, and frequently in our state systems, as well. While Congress is barred from actually cutting federal judges’ salaries, it is allowing inflation to have the same destructive effect. Since 1969, federal judges have been caught in a financial time warp, in which inflation has eroded their real earnings by nearly 25%. Whereas U.S. district judges once earned slightly more than law school deans � a fitting reflection of their responsibility and professional standing � they now are sometimes out-earned by first-year associate lawyers. On New Year’s Day, U.S. Chief Justice John G. Roberts Jr. issued the annual report on the state of the judiciary. He considered one issue so urgent that he made it the sole topic of his remarks: the declining real pay of America’s federal judges. “The dramatic erosion of judicial compensation will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge,” he said. “Without fair judicial compensation, we cannot preserve the quality and independence of our judiciary, which is the model for the world.” On April 19, two of Roberts’ colleagues � justices Stephen G. Breyer and Samuel A. Alito Jr. � testified before a House Judiciary Committee subcommittee. Alito, who joined the Supreme Court last year, recounted how a majority of the federal judges who served with him in New Jersey in 2000 have departed, mostly for better-paying jobs. Breyer, noting that colonial judges depended on the king’s good will to get paid, warned that eroding salaries could undermine the judiciary’s autonomy, both from the legislative branch and from private industry. “The Framers emphasized the importance of judicial independence and the connection of compensation with that independence,” Breyer said in testimony submitted to the House panel. “Any perception that a judicial appointment is a ‘stepping stone’ towards a more lucrative undertaking would seriously harm the judicial system, for it is directly at war with judicial independence.” There is evidence that inadequate pay already is impeding hiring and retention of the best possible judges. Anecdotal reports have shown an increase in the number of highly qualified candidates politely declining judicial nominations. As Roberts noted in his report, which can be accessed at www.supremecourtus.gov/publicinfo/year-end/2006year-endreport.pdf, about 65% of all federal judges came from private firms in the 1950s and 35% came from government careers. Today, less than 40% come from private firms. Even more disturbing, the rate of resignations has accelerated, as more judges return to private practice. From 1958 to 1969, three federal judges retired or resigned. From 1990 to the present, 100 judges retired or resigned. State judges are also underpaid Unfortunately, this unhappy pattern extends to many states, most notably New York, where the Legislature has given judges only one cost-of-living raise in the last 12 years. New York Chief Judge Judith Kaye said the real pay of state judges has fallen 26% since 1999. Kaye, who wants a neutral commission to set judges’ salaries, noted that some frustrated colleagues have urged her to sue the legislature and executive branch for better pay. “No society can expect its courts to function with the excellence the public deserves when the issue of judicial compensation reaches such unfairness and disdain,” Kaye said. Where do lawyers fit into this picture? Admittedly, this issue is a tough sell to many Americans, who might look with envy on the $165,200 salary that U.S. district court judges receive. It is unrealistic to expect a populist groundswell to give them a raise. Few Americans appreciate the need for a stable, properly supported judiciary as much as lawyers do. Therefore it is incumbent on us to champion this cause. The American Bar Association has long made proper pay of judges a top legislative priority. At this year’s “ABA Day,” an annual gathering at which 300 bar leaders talk to members of Congress, we urged lawmakers to give federal judges an immediate, significant raise. This is needed to make up for many years when judges did not get either a salary review or a cost-of-living adjustment from Congress. We also asked that judges, like most federal employees, receive regular cost-of-living adjustments that can’t be blocked by Congress. And we asked that Congress establish a neutral, nonpartisan body to periodically review the adequacy of judges’ salaries and recommend adjustments as needed. Lawyers at all levels must continually make the case to state and federal lawmakers for proper judicial pay. There is, after all, only one way to protect the proper functioning of our courts, and that is to properly invest in the men and women who run them. Karen J. Mathis, a Denver commercial and estate lawyer, is president of the American Bar Association.

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