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Judicial pay disparity drains talent from federal bench

Vacancies are rising as district judges reluctantly resign lifetime appointments to better provide for their families.

September 27, 2009|Carol J. Williams

With seven children to care for and a caseload that quadrupled this past year, U.S. District Judge Stephen G. Larson says he can no longer afford his prestigious lifetime appointment.

The 44-year-old, named to the U.S. District Court for the Central District of California less than four years ago, is the latest defection in an accelerating nationwide trend toward leaving the federal bench long before retirement age to earn more money in private practice.

Vacancies in the federal judiciary are mounting, and too few of the best legal minds are stepping forward to replace them, judicial analysts say. They attribute what they see as a troubling phenomenon to Congress' failure for nearly two decades to pass a significant pay increase for federal judges or to expand their numbers to handle a soaring caseload.

Chief Justice John Roberts of the U.S. Supreme Court has been warning of a "constitutional crisis" and threat to judicial independence if stagnant salaries drive judges out of positions long considered the pinnacle of a distinguished legal career.

"The sad reality we now face is that, in at least some situations, active judges at the peak of their judicial careers must resign to support their families," Chief Judge Audrey B. Collins of California's Central District said after Larson's announcement. The district covering Los Angeles and six other counties is the nation's most populous federal trial court, serving 19 million people.

Even California state courts are feeling the pay pinch, despite salaries and benefits significantly higher than those for federal judges. In Los Angeles County Superior Court, a judge takes home $249,413 a year with locally paid extras, or 47% more than a federal district judge.

"What that says is that the federal judges are way underpaid, and everybody knows it," said Presiding Judge Charles "Tim" McCoy of the Los Angeles County bench. The county Superior Court doesn't face as dire a situation in attracting and retaining judges as the federal judiciary, McCoy said, but the pressures are mounting there too. McCoy said one trial judge left for private practice late last year and a second just informed him he'll be resigning to earn enough to pay a college-bound child's tuition.

Neither federal nor state judges' salaries can be cut, due to constitutional protections. But the vast majority of California's 1,711 judges have volunteered to forgo a day's pay each month to share in the sacrifice imposed by furloughs that close state courts the third Wednesday of each month.

Scholars of the judiciary see uncompetitive pay as a disincentive to joining the federal bench, but they cite other reasons as well: withering confirmation proceedings that expose nominees to intense and often politically charged interrogations, tedious cases decided in settlement conferences instead of jury trials, workloads that grow larger with each colleague's departure and the slowing pace of finding replacements.

Aside from the high-profile selection of Sonia Sotomayor as the newest Supreme Court justice, President Obama has made only 17 nominations to 94 vacancies on the federal bench, or 18%. That compares with President George W. Bush's nominations to 44% of open judgeships during his first eight months in the White House.

"They're having a tough time finding people," said Russell Wheeler, a Brookings Institution scholar who studies judge selection. "Those advocating for salary increases say that soon it will be difficult to get the best talent, which is code word for saying they are already not getting the best applicants."

District judges earn $169,300 a year, and those on circuit courts of appeal get $179,500. Even Roberts, the top judge in the 876-person federal judiciary with a salary of $217,000, earns less than a Los Angeles County judge. The Administrative Office of the U.S. Courts calculates that the buying power of those federal salaries has fallen about 25% in the last four decades, while the national average for real wages has increased 18%.

Larson is the third judge lost from California's Central District over the past year, and a fourth has informed the chief judge that she plans to resign to pursue private judging in March. Reacting to Larson's decision, Collins expressed concerns about compounding influences as each departing judge leaves behind a caseload that has to be redistributed among those left on the bench. That is an especially severe problem in the district's eastern sector, where Larson serves, as only one other judge is assigned to that courthouse. Those with business before the court in San Bernardino and Riverside counties may have to travel to Los Angeles or Santa Ana to have their cases heard, Collins said.

Although retention is an acute problem in the costly cities of California, it is a problem across the country. The number of judges departing over the last decade is projected to be 68 by the end of this year, a 24% increase over the 1990s and compared with only three in the 1960s.

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