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Judicial salaries have always been much lower than the quality of service we expect (and get) from the judicial branch of government. One of my first votes as a member of Congress was to provide a lump-sum pension to the widow of Justice Felix Frankfurter. Without it, she could have ended up in the poorhouse. One of my judicial contemporaries said that even if he could afford to live on a judicial salary, he couldn’t afford to die on it. He retired to go back to academia. Recent news stories have spotlighted these problems in the course of commenting on Justice Anthony M. Kennedy’s congressional testimony and a speech made by Chief Justice John G. Roberts Jr. on this subject of judicial pay. Most recently, justices Stephen G. Breyer and Samuel A. Alito Jr. testified before a House Judiciary subcommittee on this topic. Yes, an increase in federal judicial salaries is long overdue. Judges are the anchors of our judicial system, and the framers of our Constitution intended that judicial salaries be sufficient to attract and retain the highest caliber of talent. However, the current problem is not that judges are “leaving the bench” at inappropriate times. Very few judges retire early in their service. The problem for judges who have made the commitment to go on the bench in the first place is whether or not to stay on as “senior judges.” Senior judges are those who have served long enough to retire, but elect to stay on the court and continue to serve even though they could draw their regular salary as retired judges. Retired judges are free to engage in any outside remunerative activities, and it is this group that takes positions as mediators and arbitrators for dispute-resolution firms, and as senior lawyers in large law firms. Senior judges are prohibited from such outside activities. Senior status versus retirement 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 public fishbowl. Being a judge, especially a federal judge, is a great job. The work is exciting. The psychic income is high, but it should not come as a surprise that some of the best prospects turn down the opportunity because they don’t want to live or die on a judicial salary. The earning capacity of a lawyer at the top of his or her game in the private sector is very difficult to trade in, even for a robe and a high bench. You cannot pay a child’s college tuition or the mortgage with psychic income. More pay, no junkets What I have said about judicial pay is true of most public salaries. One of the reasons that Congress has tried to hold judicial salaries in tandem with their own is the hope that the judges will act as the lodestar to justify increasing congressional salaries. I partook in that exercise when I was in Congress: It was never very successful, and it really is not justifiable. Congress would be doing the right thing if it raised judicial salaries. At the same time, it should establish parity in prohibiting privately financed “junkets” for judges. Congress has prohibited such junkets for itself, and it is even more imperative that the appearance of impropriety should be removed from the judiciary. If judges have done their time and want to retire, that is not a problem that needs fixing. It is the hiring end of judges that needs repair, and needs it soon. Abner Mikva is a retired U.S. appeals court judge, a former U.S. congressman and former White House counsel. He currently is a full-time mediator and arbitrator with JAMS.

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