WHEN JOHN G. Roberts Jr. was seeking confirmation as chief justice of the United States, he told the Senate that judges should be guided by "institutional and personal modesty and humility." Alas, Roberts has ignored his own advice. In his annual report on the judicial branch, he calls inadequate pay for federal judges a "constitutional crisis that threatens to undermine the strength and independence of the federal judiciary."
Watergate was a constitutional crisis. "Massive resistance" by Southern states to the Supreme Court's desegregation rulings was a constitutional crisis. Al Gore's refusal to accept the Supreme Court's decision in Bush vs. Gore would have been a constitutional crisis. Less-than-ideal pay for federal judges is a political problem.
In asking for higher pay for judges, Roberts is echoing not just his mentor, the late William H. Rehnquist, but blue-ribbon commissions and the organized bar. Like them, he argues that pay for federal judges has not kept up with inflation, that financial anxieties have caused some judges to resign from the bench early and that the quality of the federal bench has suffered as a result.
Maybe so. But Roberts, known for his caution in crafting judicial opinions, overreaches, especially when he suggests that once "judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the framers' goal of a truly independent judiciary will be placed in serious jeopardy."
But it is life tenure, not annual salary, that ensures judicial independence. Federal judges -- first-rate or mediocre -- can't be forced off the bench because of unpopular decisions. A judge's decision to quit early to improve his or her standard of living is a different issue.
Roberts' frustration is understandable. Pay raises for judges -- and other public officials, for that matter -- will always seem exorbitant to citizens who earn less. Yet as Roberts points out, since 1969 the average U.S. worker's wages have risen 17.8%, and judicial pay has declined 23.9%. But he shouldn't expect those numbers to inspire pity parties once it's pointed out that federal district judges were paid $165,200 in 2006.
That said, federal judges have been ill-treated by a 1989 law that links their cost-of-living raises to those of members of Congress. Fearful of being criticized for raising their own salaries, members of Congress voted not to accept several pay raises in the 1990s -- meaning that the judges also went without raises. That connection would be broken under legislation that would also include a "catch-up" raise for judges.
Roberts is free to describe the problem and press for its solution. But please, Mr. Chief Justice, no more talk of a constitutional crisis.