Men who believed that a government's power must always be tempered by reasoned and methodical considerations of justice invented the judicial branch; a branch that was supposed to act as a check on the power of a strong national government. Corrode the central figures in that system of checks and balances - federal judges - and one corrodes the quality of liberty and democracy available to our citizens.
This is precisely what is occurring today, as the lack of adequate compensation for federal judges is discouraging the best and brightest from pursuing the bench. The resulting dearth threatens to undermine the administration of justice in this country.
The problem is that a hard cap on the salaries earned by top government officials ensures that federal judges - even Supreme Court Justices - earn significantly less than their counterparts in the private sector. The Ethics Reform Act of 1989 was intended to redress that gap by providing top government officials with regular pay increases. (It did not.) In fact, federal judges have received only four cost-of-living salary adjustments in the past nine years - meaning that their salaries have failed to even keep pace with the rate of inflation. Meanwhile, the salaries of attorney's in private practice have skyrocketed. Forced to choose between government service and financial security, many in the legal community are opting for the latter.
At the same time, a record number of judges are fleeing the bench. Once a rare occurrence, resignations from the federal bench have increased for every nine-year period since 1960 to 1969, when there were only three departures. The period between 1990 and 1999, by contrast, witnessed the departure of 55 federal judges. In the first five months of this year, there have already been 18 resignations.
"There was a time when I always recommended a federal judgeship to someone considering it, " said Chief Judge Roger Vinson (N.D. Fla.). "Now, however, I hedge a lot. . The compensation is simply not comparable to the private sector, and the prospects are that it will get worse instead of better."
The major implication: pay compression will pare away a segment of diverse and extremely fit people, reducing the third branch to those who are independently wealthy. A judiciary comprised of those who merely wish to hold the job is never good for a democracy.
Of course, the sensible thing to do would simply be to pay federal judges more money.
Just one thing. Unlike in the private sector, federal judges draw their salaries from tax dollars. And while the taxpayers might support modest raises, legislators - a breed who tend toward placing themselves at the center of the universe - are extraordinarily unlikely to pass legislation that ensures judges get paid more than they do. After all, American legislators are as dedicated to money as their adolescent need to be feared and worshipped (an indispensable quality for a democratic leader). Expect from them instead the typical blather about how serving on the federal judiciary is its own reward.
A more pragmatic response might be to lessen the ancillary income restrictions that limit the amount of money judges could earn from teaching (the only part of The Ethics Reform Act of 1989 that Congress bothered to enforce). That would be a heroic act of common sense. It might also prevent a large segment of the federal judiciary's most diverse, fit and experienced legal minds from fleeing to the private sector.
That would be satisfying - for our federal judiciary, and for our democracy.