[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                     FEDERAL JUDICIAL COMPENSATION

=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON COURTS, THE INTERNET,
                       AND INTELLECTUAL PROPERTY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 19, 2007

                               __________

                           Serial No. 110-48

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

    Subcommittee on Courts, the Internet, and Intellectual Property

                 HOWARD L. BERMAN, California, Chairman

JOHN CONYERS, Jr., Michigan          HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia               TOM FEENEY, Florida
MARTIN T. MEEHAN, Massachusetts      LAMAR SMITH, Texas
ROBERT WEXLER, Florida               F. JAMES SENSENBRENNER, Jr., 
MELVIN L. WATT, North Carolina       Wisconsin
SHEILA JACKSON LEE, Texas            ELTON GALLEGLY, California
STEVE COHEN, Tennessee               BOB GOODLATTE, Virginia
HANK JOHNSON, Georgia                STEVE CHABOT, Ohio
BRAD SHERMAN, California             CHRIS CANNON, Utah
ANTHONY D. WEINER, New York          RIC KELLER, Florida
ADAM B. SCHIFF, California           DARRELL ISSA, California
ZOE LOFGREN, California              MIKE PENCE, Indiana


                     Shanna Winters, Chief Counsel

                    Blaine Merritt, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 19, 2007

                           OPENING STATEMENT

                                                                   Page
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on Courts, the Internet, 
  and Intellectual Property......................................     1
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Ranking Member, Subcommittee on 
  Courts, the Internet, and Intellectual Property................     3
The Honorable Howard L. Berman, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on Courts, 
  the Internet, and Intellectual Property........................     4
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Member, Subcommittee on Courts, the 
  Internet, and Intellectual Property............................     5
The Honorable Adam B. Schiff, a Representative in Congress from 
  the State of California, and Member, Subcommittee on Courts, 
  the Internet, and Intellectual Property........................     6

                               WITNESSES

The Honorable Stephen G. Breyer, Presiding Justice, U.S. Supreme 
  Court, Washington, DC
  Oral Testimony.................................................     7
  Prepared Statement.............................................    13
The Honorable Samuel A. Alito, Presiding Justice, U.S. Supreme 
  Court, Washington, DC
  Oral Testimony.................................................    66
  Prepared Statement.............................................    69

                                APPENDIX

Material Submitted for the Hearing Record........................   113


                     FEDERAL JUDICIAL COMPENSATION

                              ----------                              


                        THURSDAY, APRIL 19, 2007

                  House of Representatives,
              Subcommittee on Courts, the Internet,
                         and Intellectual Property,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Berman (Chairman of the Subcommittee) presiding.
    Present: Representatives Berman, Conyers, Lofgren, Watt, 
Jackson Lee, Cohen, Schiff, Coble, Smith, Goodlatte, Keller, 
Issa, and Pence.
    Staff present: Perry Apelbaum, Majority Staff Director and 
Chief Counsel; Julia Massimino, Majority Counsel; Joseph 
Gibson, Minority Chief Counsel; Blaine Merritt, Minority 
Counsel; and Rosalind Jackson, Professional Staff Member.
    Mr. Berman. The hearing of the Subcommittee on Courts, the 
Internet, and Intellectual Property will come to order.
    I would like to begin by welcoming everyone to this 
oversight hearing on Federal judicial compensation and to 
welcome our distinguished witnesses.
    The Chairman of the full Committee has joined us. And I 
recognize Chairman Conyers for the first opening statement.
    Mr. Conyers. Thank you very much, Subcommittee Chairman 
Berman, Members of the Committee.
    And to our two distinguished witnesses, members of the 
Supreme Court, we are so delighted that you are here.
    And I want to begin by immediately immersing ourselves in 
the subject. What is linkage anyway? And why do we need to do 
something about it?
    And I am referring to the authority that Congress gave 
itself by enacting section 140 of Public Law 97-92 in 1981, 
which established that the salary of Article III judges is 
prohibited from being increased without a specific 
congressional authorization each year. Unfortunately, I was in 
the Congress at that time. I did not remember how I voted on 
the issue.
    But I take some responsibility for urging the 110th 
Congress to correct this at once. There is no existing logic 
for linkage anymore in the 21st century, as far as I am 
concerned.
    I think it will help all of us. And I see no reason why we 
need to require that the cost-of-living increase happen only 
because we give it to you every year. I think if a cost-of-
living adjustment is appropriate, it should happen anyway.
    Now, if there is any single idea in the Constitution that 
has separated our experiment in democracy from all other 
nations, it is the concept of an independent judiciary. I had 
the pleasure of meeting with some of the members of the court. 
And I have since come from China. And we met with Chinese 
judges who are grappling with this really radical idea of a 
presumption of innocence. And they were telling us the problems 
they were having in effecting that.
    And so, what we are doing and what other countries in the 
world are doing--they are all looking at the American 
constitutional experiment. Alexander Hamilton said that the 
independent spirit of judges enabled them to stand against the 
ill humors of passing political majorities. And in the 
Massachusetts Constitution, I remind you that it said that it 
is the right of every citizen to be tried by judges as free, 
impartial, and independent as the lot of humanity will admit.
    And so, we are proud in this Committee and in this Congress 
that the civil rights progress in America came from striking 
down racially restrictive covenants in Shelley and Kramer in 
1948; that we prohibited racially segregation in the public 
schools in Brown v. the Board in 1954; that we took the 
courageous act of Rosa Parks' bravery in the Montgomery bus 
boycott to end racial segregation of interstate and intrastate 
transportation facilities in Bailey v. Patterson; in criminal 
law, Gideon and Wainwright in 1963 provided that criminal 
defense attorneys must be provided for indigent criminal 
defendants, in 1964, the famous Miranda decision, and so on.
    These cases all have been landmark, and they were done by 
that third branch of government because it was highly unlikely, 
looking back historically, that this could have happened any 
other way. I am very pleased about this.
    The role of the Federal courts in matters of speech, of 
religion, of freedom of the press, due process, equal 
protections, voting rights, reproductive choice, privacy, and 
curbing executive abuses is important in every way, and it 
intersects everybody's lives in many ways--the decisions that 
are made by the distinguished members of the United States 
Supreme Court.
    Now, I have given you a list of the things that have made 
me proud. I have got an equally long list of the things that I 
am not too happy to report. And so, I have struck them from my 
statement this morning because that is not why we are here.
    I do fervently believe, as every Member on this Committee 
does, that our judicial system in its conception,its process 
and personnel, is the envy of the world. And so, for these 
reasons, we take serious the issue of the compensation of 
members of the Supreme Court and of our failure, admittedly, to 
adequately compensate the members, the Justices on the Court. 
And so, we are now looking at the results of a decline in 
incomes of pay that have led to widespread resignations, 
unfortunately, from the judiciary over this last period of 
years.
    Equally troubling is the implications this reduced pay has 
had for the diversity on our Federal bench. One of the 
strengths of the court, especially the Federal courts in 
particular, is the pluralism in terms of race, religion, and 
career expertise. If we don't eliminate linkage and increase 
Federal judicial pay, I fear that we will be limiting our 
judiciary to persons of more privileged backgrounds. And I 
don't think that would advantage us in any way.
    So as we meet today, the stakes could hardly be higher. We 
all want an independent judiciary. We want the best and most 
qualified individuals that make these life and death historical 
decisions that must be made every day in our Federal judiciary. 
We want to maintain this crown jewel of our constitutional 
system. And we have to be willing to pay for it.
    And I am very proud of the Chairman of this Subcommittee, 
Howard Berman, and the great work that he has done in leading 
us to this day. Thank you very much.
    Mr. Berman. Well, thank you, Mr. Chairman.
    And I now recognize our distinguished Ranking minority 
Member of the Subcommittee, Congressman Coble, for his opening 
statement.
    Mr. Coble. Thank you, Chairman Berman. And thank you for 
having called this hearing.
    I guess every Member of this panel would place Chairman 
Berman and me at opposite ends of the ideological spectrum, I 
being the conservative, he the liberal. But Chairman Berman and 
I agree far more often than we disagree. And the rare times 
that we have disagreed has been done so agreeably.
    And I suspect, Chairman Berman, the same comparison would 
apply to our two distinguished justices. I hope you all get 
along as well as Chairman Berman and I do. But that is not for 
me to say.
    I will be mildly in opposition to the Chairman's position 
here. But I will do so agreeably. When I practiced law, which, 
see, is back in the Dark Ages now in North Carolina in the U.S. 
District Court for the middle district of North Carolina, I 
encountered outstanding judges, both at the State level and at 
the Federal level who performed exemplary public service that 
is integral to the maintenance of a free and civil society.
    Gentlemen and friends in the hearing room, without the law 
and without good judges to administer this law, we likely would 
have chaos.
    But none of us gets a blank check in life, Mr. Chairman, 
and especially in public life when we are, in effect, spending 
taxpayers' dollars. Pay raises and pensions resonate with the 
public.
    Unlike a $1 billion appropriations bill, Justice Alito and 
Justice Breyer, an annual dollar figure pegged to a civil 
servant's salary or pension pegged to us and pegged to you all 
creates a digestible reference point for the average worker. 
The current salaries of the justices, U.S. district judges, 
U.S. circuit judges, and the justices across the street place 
them, I am told, in the top 2 percent of all salaried workers 
in the United States, irrespective of occupation.
    Again, we are all aware of the important contributions that 
Federal judges and justices make to society. But consider the 
following inducements to Federal judicial service: 
intellectually stimulating and varied work; support staff, 
including very bright, sharp clerks to assist with the research 
and writing projects.
    And I am not saying this in any sort of demeaning way, but 
there are tangible benefits, it seems to me. The opportunity to 
travel, as we enjoy as well; access to a menu of Federal 
benefits, including a pension that is equivalent, I think, to a 
judge's pay; and, of course, prestige within the legal 
community in the judge's home town.
    And, Mr. Chairman, I do this somewhat reluctantly because 
each time I have addressed the Judicial Conference, they have 
embraced me very warmly. And I hope they will embrace me warmly 
if I am ever invited to come back to talk to the Judicial 
Conference.
    But, gentlemen, it is good to have both of you here.
    And, Mr. Chairman, Chairman Berman, even though it may not 
sound like it, I pledge to you to keep an open mind as we 
debate this issue of judicial pay at this hearing and even 
subsequently. And I yield back the balance of my time.
    Mr. Berman. Well, thank you very much, Mr. Coble. And I 
pledge to consult you whenever I have a question about rule of 
law in the Dark Ages. [Laughter.]
    Mr. Coble. See what I mean? We get along well. [Laughter.]
    Mr. Berman. I recognize myself now for a very brief opening 
statement, and my entire statement will be in the record.
    I simply want to point out that for the last few decades 
the Chief Justice of the Supreme Court has produced an Annual 
Report on the state of the Federal judiciary and issues facing 
those serving on the Federal bench.
    This year Chief Justice Roberts' report focused on a sole 
subject: judicial compensation. He was not the first chief 
justice to express frustration about inaction on judicial 
compensation and the impact that lagging salaries have had on 
both the diversity and the independence of the Federal 
judiciary.
    Chief Justice Rehnquist warned of that growing disparity. 
The framers of our Constitution understood the relationship 
between adequate compensation and judicial independence. It is 
simply this: I may not agree personally with an opinion issued 
by the Court, much as the Chairman pointed out--would like 
some, don't like others.
    But as a Member of the legislative branch, I should not be 
and shall not allow myself to be permitted to translate that 
disagreement into a personal financial punishment for the 
justices joining the opinion. That protection is the objective 
of the Compensation Clause in section 1 of article 3 of the 
Constitution. I will spare you Alexander Hamilton's quotations 
on the economic pressures of inflation.
    I will close by simply pointing out that just this morning 
a bipartisan group of former Members of Congress, including a 
former Chairman of the House Judiciary Committee, called for 
de-linkage of legislative and judicial branch salaries and 
supporting their efforts, the Brookings Institute, together 
with the American Enterprise Institute, released a report that 
analyzes the policy of inter-branch salary linkage. The group 
includes former Senators Howard Baker, John Danforth, and Sam 
Nunn, former Representatives Dick Gephardt, Henry Hyde, Susan 
Molinari, Leon Panetta, and Louis Stokes.
    I am told that the white paper lays bare the weaknesses and 
claims we hear about why to retain linkage and explains why a 
one-size-fits-all salary determination is inappropriate for 
officials with different responsibilities and career 
anticipations. The report also demonstrates the flaws in about 
the only defense offered for a linkage as policy, that it 
symbolizes equality between the three branches.
    Finally, I am told that the report addresses the question 
that is, to be honest, a concern of some Members of Congress 
who support linkage, whether it really has benefited 
legislative salaries. Time will tell exactly how we translate 
the results of this hearing and this report into legislation. 
But at this particular point, I yield back my time.
    I point out that there will be votes shortly after 11:00 
a.m. I am going to recognize the Ranking Member of the full 
Committee and then the co-Chair of the Congressional Caucus on 
the Judicial Branch for opening statements. And then we will 
get to the justices.
    I recognize Congressman Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    At the outset, I want to thank our distinguished witnesses. 
It is not often that two Supreme Court justices choose to 
appear before Congress to testify and answer questions. Their 
presence indicates just how important this issue is to the 
Federal judiciary.
    Without question, the Federal judiciary can demonstrate 
that their salaries have not kept pace with those of their 
peers in the private sector or with the typical working man or 
woman. Between 1969 and 2007, the real pay of district judges 
declined by 27 percent while the typical worker's pay increased 
by 23 percent. The primary reason judicial pay has lagged for 
nearly 40 years is linkage, the statutory requirement that 
links the salaries of district judges and Members of Congress.
    But not all public servants are treated this way. That is 
deprived of higher pay by an arbitrary link to congressional 
compensation. For example, the FDIC's chief officer is paid 
more than $257,000 annually while the SEC's deputy chief 
accountant earns in excess of $200,000. In fact, a single day's 
listing of Federal job vacancies on March 14 showed 467 
positions with pay ranges that exceed the current level for 
district judges and Members of Congress.
    The erosion of judicial compensation based on linkage has 
compelled the chief justice of the United States to declare a 
pay raise his top priority. In my opinion, his comments and 
those of our guests today are due great deference.
    If we want to continue to attract those with the broadest 
experience and greatest knowledge to the Federal judiciary, we 
simply have to pay them more. That is not a comment on their 
motives. It is a recognition of reality and the marketplace.
    However, I also believe that an increase in Federal 
judicial pay while not linked to congressional salaries should 
be a part of other judicial reforms. For example, last year a 
committee led by Justice Breyer released its study of the 
Federal misconduct statute that found roughly 30 percent of all 
high profile disciplinary cases were mishandled. The committee 
also made 12 recommendations to ensure that the misconduct 
statute will be used to maximum benefit in future cases.
    While I understand the judiciary's commitment to implement 
all 12 recommendations, we are informed that a plan to do so 
will not be available until the fall of 2007, meaning the 
Judicial Conference will have taken an entire calendar year 
just to develop a blueprint with no implementation in sight. It 
might help efforts to raise judicial pay if better progress can 
be shown in this effort.
    I also think it is fair to examine judicial pensions. The 
average age for district and circuit judges when they take the 
bench is about 50. After serving for only 15 years, they will 
fully vest in a pension program that equals their full-time 
pay. This system is generous by any standard and may even serve 
as an inducement to retirement or taking senior status. 
Increasing judicial salaries while modifying the judicial 
pension system might be a way to both attract and retain highly 
qualified judges.
    Again, Mr. Chairman, I want to thank Justice Breyer and 
Justice Alito for taking the unusual step of testifying at a 
congressional hearing. It rightfully calls our attention to a 
very important issue.
    Now I yield back the balance of my time.
    Mr. Berman. Thank you.
    And I recognize again the co-Chair of the Congressional 
Caucus on the Judicial Branch for an opening statement and then 
recognize the witnesses. Congressman Schiff?
    Mr. Schiff. Thank you, Mr. Chairman.
    And I want to thank the Chairman of our full Committee, Mr. 
Conyers, for hosting and holding this important hearing today. 
And indeed, we are honored to have two distinguished members of 
the Court with us.
    At the outset, I just wanted to make reference to our 
Ranking Member, Mr. Coble's comments. And I am sure if you do 
visit the Judicial Conference you will be warmly received. But 
if you get kissed on both cheeks, it may not be as good as you 
think it is.
    In the 108th Congress, along with Representative Judy 
Biggert, I co-established the bipartisan Congressional Caucus 
on the Judicial Branch in order to try to improve relations 
between our respective branches. Last year we hosted Chief 
Justice Roberts for a meeting with over 40 Members of Congress 
on both sides of the aisle. And Justice Breyer has graciously 
agreed to meet with our caucus in the near future.
    The chief justice's message to our Members at the meeting 
last year focused on the current inequity in our compensation 
system for Federal judges, an issue that he believes poses a 
serious threat to the quality of our Federal judiciary. The 
late Chief Justice William Rehnquist, who was our first guest 
at the Caucus on the Judicial Branch, also frequently stated 
that inadequate compensation seriously compromises the judicial 
independence fostered by life tenure and risks affecting 
judicial performance.
    Indeed, the founders understood well the potentially 
dangerous relationship between salary decisions and judicial 
independence with article 3, section 1 of the Constitution, 
specifically prohibiting the reduction of compensation for 
Federal judges. Holding these salaries hostage is equally 
problematic.
    Chief Justice Roberts recently warned that if these 
inequities are not resolved, ``The judiciary will over time 
cease to be made up of a diverse group of the Nation's very 
best lawyers. Instead it will come to be staffed by a 
combination of independently wealthy and those following a 
career path before becoming a judge different from the 
practicing bar at large.''
    In fact, the chief justice joked at our meeting that while 
his clerks were indeed brilliant men and women, he did not 
believe they were sufficiently worthy of the significantly 
higher salaries they would receive upon completion of their 
clerkships. And I know our present justices wouldn't agree with 
that sentiment, at least not on the record.
    Last year I joined Senator Feinstein in introducing 
bipartisan legislation in the House to de-couple our salaries 
from the judicial salaries, to increase salaries and also to 
provide annual cost-of-living adjustments. We had 17 bipartisan 
co-sponsors, including our Committee's own Judge Louie Gohmert.
    Mr. Chairman, I look forward to working with you on this 
legislation again. And I hope that we will successfully address 
this issue in the 110th Congress. And I yield back the balance 
of my time.
    Mr. Berman. Thank you.
    Justices Breyer and Alito, we welcome both of you, and 
thank you for joining us this morning.
    Justice Stephen Breyer is a graduate of Stanford, Oxford 
and Harvard Law School. Prior to his service on the Supreme 
Court, he taught law for many years as a professor at Harvard 
Law School and at the Kennedy School of Government. He also 
worked as a Supreme Court law clerk for Justice Arthur 
Goldberg, a Justice Department lawyer and assistant Watergate 
special prosecutor and chief counsel of the Senate Judiciary 
Committee.
    In 1980, he was appointed to the United States Court of 
Appeals for the First Circuit by President Carter, becoming 
chief judge in 1990. He was appointed to the Supreme Court by 
President Clinton in 1994.
    Justice Samuel Alito, Jr., was nominated as an associate 
justice of the Supreme Court by President George W. Bush and 
was sworn in on January 31, 2006. He previously served as a 
judge of the United States Court of Appeals for the Third 
Circuit, having been appointed by President Bush in 1990.
    He began his legal career as a law clerk for the Honorable 
Leonard Garth of the United States Court of Appeals for the 
Third Circuit from 1977 to 1981. He was an assistant U.S. 
attorney in Newark, NJ, from 1981 to 1985. He was an assistant 
to the Solicitor General of the United States and in that 
capacity briefed and argued numerous cases in the United States 
Supreme Court.
    From 1985 to 1987 he was Deputy Assistant Attorney General 
in the Justice Department's Office of Legal Counsel. He was 
appointed in 1987 by President Reagan as U.S. Attorney for the 
District of New Jersey and held this office until his 
appointment to the Third Circuit.
    Colleagues, I think we should allow the witnesses to 
testify and not interrupt them.
    Justice Breyer?

    TESTIMONY OF THE HONORABLE STEPHEN G. BREYER, PRESIDING 
          JUSTICE, U.S. SUPREME COURT, WASHINGTON, DC

    Justice Breyer. Mr. Chairman and Mr. Chairman of the 
Committee, Ranking Member, both of the full Committee and the 
Subcommittee, and the other Members that are here, I appreciate 
very much your being here. And we both appreciate very much 
your having this hearing.
    I have to say I am a little nervous about it. I am not too 
happy. Why? Because I am talking about judicial pay. Now, a 
person talking about his own pay may be somewhat biased. And he 
is going to be thought to be biased.
    And moreover, as you pointed out, Congressman, Ranking 
minority Member, you are quite right. We make quite a lot more 
than the average person. And in a way, here I am talking 
through you to your constituents. And how do you tell somebody, 
a man or a woman, that you ought to be paid considerably more 
than they are?
    That is not an easy thing to do. And I have thought about 
it. And well, I am here. We are here. I think, in part, our 
being here is an indication of this topic's importance because 
we aren't here often.
    It is partly what you said, Chairman Conyers. Hamilton 
said, you know, the choice is between firm, independent judges 
or the bayonet.
    And Madison--along with others wrote those words in the 
Constitution. There isn't too much about judges in the 
Constitution. It is small compared to the other branches. But 
it does say that they are to be appointed at a compensation 
that shall not be diminished. And it has been diminished a lot 
in real terms. And we both think that--and I think a lot of the 
judges think--that though, I grant you it is in their interest. 
But there is a whole stack of newspaper editorials and others 
who think this, too, that it has gone too far and it is a 
problem and it is a serious problem. And really, I think that 
is why we are here.
    Now, what do I say to the average man and woman? I tried to 
boil it down to four points really. As a former teacher, I like 
to have four points. And these are the four points. I would say 
first of all, look at these numbers. They don't show a little 
diminishment in judicial pay. They show a lot. And cut it up, 
down or sideways. You cut it any way you want.
    I say, as you said, Congressman Smith, quite rightly, you 
go back over the course of my career, professional career and 
what you see is a steadily downward trend. I mean, compensation 
is real. You have to pay for food with real dollars. It is not 
phony, inflated dollars. And when you look in terms of real 
compensation, what you discover compared to the average 
American, that the judge pay has dropped 50 percent really, 
just about 50 percent.
    Or look at it in terms of the academic profession. I just 
received an e-mail from Lou Pollock. Some of you know Lou 
Pollock. He started teaching at Yale--he is now a very 
distinguished district court judge.
    And Lou can remember the dean calling him in and saying 
some day if we are lucky we are going to get our pay inched up 
toward the level of the Federal judge. Well, it used to be it 
was 40 percent behind. Now, today, it is the judge who is 40 
percent behind the professor and the dean is way ahead of that.
    Or look at the non-profit sector. That is not the private 
bar. We have graphs if you want; if I get a little dull. Look 
at the graphs in here. They are pretty interesting. And they 
will show in the non-profit part, the top executives are paid 
twice as much as the Federal judge. That didn't used to be so.
    Or if you go and, as you were saying, compare it to the 
other part of the government, the executive branch. This is a 
list of summaries here because the staff at the administrative 
office went through, and they just tried to find out by looking 
at a day's worth of advertisements for jobs in the executive 
branch that pay more than a Federal judgeship. Well, here is 
the list. There are five or six on a page. Now, a lot of them 
are medical. But some are legal. And some are purely 
administrative.
    So look at it up, down, sideways. I don't care how you 
count it. And I haven't even mentioned the private sector. And 
the only thing I had mentioned about the private sector--nobody 
expects--you are absolutely right--nobody expects in public 
life--and they shouldn't--to make anywhere near the private 
sector, the private bar, the private firm. But it used to be it 
was like three to one. Now it is seven to one.
    So you look any way you want. And I think that number--the 
number I usually use is the one that was used here, a Federal 
judge's salary has declined 50 percent compared to the average 
American over the last 40 years. Now, my second point, to put 
the question to myself: so what? As you said, there are a lot 
of perks. What perks? Being a Federal judge is a terrific job. 
It is a wonderful job. Being in public life has tremendous 
rewards. So what is the problem?
    And what I say is I can't prove it, but I say there are bad 
signs. Well, what? Well, one bad sign is the number leaving the 
judiciary. We looked back over the last few years, and you go 
back 5 years or so, and it is approximately 40 fewer judges. 
That was unheard of. Go back to the 1970's, 10 maybe. Where did 
they go?
    Well, the kind of thing that frightens me that I don't like 
is I looked at the roster of a prominent arbitration company. 
You know, you don't have to go into private practice. 
Arbitration, that is what you like doing as a judge. I found 
the names there of 21 former Federal judges.
    And why do I think, ``Oh, dear''? And I do think, ``Oh, 
dear.'' I think, ``Oh, dear'' because it means that there is a 
risk that this job which I love--it is not just the Supreme 
Court, either. It is the district court, or it is the court of 
appeals. It becomes a stepping stone. And Learned Hand said 
that, or I was told he said that. The day that that job becomes 
a stepping stone instead of a capstone, which is what it is 
supposed to be, the capstone of a career, not a stepping stone 
to some other thing, that is death for the judiciary. That is 
not good.
    Well, go look at the roster. And then I go out and say--
well, I think you said it exactly, Chairman Conyers. It is what 
I believe. You say, well, what is it about attraction? Isn't 
there a line a mile long trying to be Federal judges? Yes. And 
you mean they are all bad people? No.
    A lot in that line are very qualified people, very 
qualified. Well, what is the problem? Well, to me the problem 
is this. Because the word I use is the word diversity. And 
diversity--by that I don't mean just racial diversity, and I 
don't mean just gender diversity. I mean, I think that the 
Federal judiciary should have diversity--and I believe this 
very much in my heart. What is it supposed to be in terms of 
the personnel? Two things.
    Taken as a group, it should represent that community. The 
Federal judges should grow out of the community. And as 
individuals, that job should be opened to everyone who has the 
possibility through intellect, through training, through 
character. If you have those qualifications, the judiciary 
should be open to you, and it shouldn't be reserved for the man 
or woman who saved up $10 million or $5 million.
    I am not saying eliminate it, but, it shouldn't be 
overwhelmingly people who followed the professional judicial 
career path, you know, government and then--I mean, there have 
been some great judges who have come out of that path. But it 
used to be that those professionals, State court, magistrates, 
and so forth, it used to be they accounted for about 20 percent 
of the judiciary. Today it is more than half.
    Now, that isn't, I think, what you want. What you want is 
an open, diverse judiciary. And you can have a judiciary, you 
know, that is a totally professional judiciary. They have that 
in France. They have that in continental Europe. And there are 
many good judges in that system.
    But that system is not our system. And it shouldn't be our 
system. See what I haven't said? I haven't said judges deserve 
more money. And I deliberately don't' say that because I don't 
think there is a divine spirit that tells us how much money 
people should make. But I do think it matters to the nature of 
the judiciary. So that is my second point. And I have tried to 
describe why.
    But I have to do more than that for the average man or the 
average woman because while you know and you understand what 
kind of institution we are dealing with, a lot of people don't. 
And I try to say, well, what is it that you are doing here? You 
are running a risk of damaging the judiciary.
    People are motivated by a lot of things. And in public life 
they are not directly motivated by money. But it is part of the 
mix. So I say what you are doing is you are running a risk. A 
risk of what? I say it is a risk to the kind of independent 
judiciary that Hamilton and Madison wanted. What is that for 
me, says the average person?
    I try to explain it like this. And I talk to school groups. 
And I try to--this is a point I try to make to people. I say, 
well, look, let me show you something. I once was in a meeting 
in Russia. And Yeltsin was there. And they had judges from all 
over Russia. And they were talking.
    And Yeltsin came in and said I am going to make you 
independent and I am going to give you a pay raise. Well, they 
liked that. And after, they were talking about it, and they 
were saying do you think it means the end of telephone justice. 
I said, what is that. They said, telephone justice--you must 
know it. I don't know. What is it?
    They said, well, telephone justice is when the party boss 
calls you on the telephone and says how to decide the case. 
Well, why did we do that, they were asking themselves. We know 
why we did it. We needed the apartment. We needed the education 
for our children. We needed the perks that a yes response would 
give.
    And then they asked me. They said, do you have that in the 
United States? I said, no. And they looked sidewise. And I say, 
you would think I would say that even if the answer were yes. I 
said well, it is no. And I went on at such length they began to 
believe me.
    But what I want to say to the public, the people who aren't 
lawyers is I will tell you one thing independence means. 
Independence means no telephone justice. So if you have the 
misfortune to be in court, I will tell you you want somebody up 
there, if you are the least popular person in the United 
States, who can handle that job and is not going to be swayed 
except by the merits of your case.
    Then I like to repeat sometimes something that I heard Alan 
Greenspan say. He said that if he was going to have one reform 
for a lot of the countries that want development, he would say 
have an independent judiciary so that when a contract dispute 
comes up, there will be a judge there who understands how to 
deal with it and who will be fair. And then there will be the 
investment. And then you will have the prosperity.
    And then sometimes I like to tell the story--I won't go 
into too much length. But I love this story because it is true. 
And I go back--I usually tell the students particularly about 
two or three cases. I say I would like to tell you about the 
Cherokee Indian case because that was a case in Northern 
Georgia where the Georgians took over the land. And the Supreme 
Court said that the land belongs to the Cherokee Indians. And 
Andrew Jackson supposedly said well, John Marshall made his 
decision. Let him enforce it.
    And Andrew Jackson sent troops. And those troops went not 
to enforce the law. They went to evict the Indians. And the 
Indians went from Georgia to Oklahoma. A lot of them died. And 
there are a lot still there that are descendants.
    So I said I want you to compare that case to a case that 
was one of my favorites that happened more than 100 years later 
that is called, as you know, Cooper v. Aaron. And in Cooper v. 
Aaron there was another public official who wanted to defy the 
law. He was Orval Faubus. And Orval Faubus stood in that 
schoolhouse door and he said, ``I have the militia. You may 
have the judges, but I have the militia, and I am not going to 
do it. I am not going to integrate the schools.''
    And President Eisenhower, a different president at that 
time, called in the 101st Airborne. And they went there. And 
the paratroopers took those Black children by the hand, and 
they walked into that White school. And what I wanted to tell 
the 10th-graders is that was a great day for America. That was 
a great day.
    I once had a Russian paratroop general at the court. He was 
the man who had been in charge of the missiles. And he turned 
the direction of the missiles. And I told him the story of that 
case. And I said it shows you that the paratroopers and the 
judges must be friends.
    But you see, you take controversial cases. You take your 
choice. And I have heard people say this, and I say it. Where 
are those bayonets on the street? They aren't there. Is it 
because people don't feel strongly? No, they feel strongly.
    But they have learned no bayonets, no riots, no force. 
Hamilton was right. American citizens have learned how to 
follow the law.
    Now, I described that in 5 minutes because I want you to 
see what I feel every day when I look, I am sitting there, and 
I look out across that courtroom and I see people of every 
race, every religion, every point of view. And they are in 
front of us, and they are resolving their disputes under the 
law.
    Now, I do say this because I want you to see emotionally 
what I feel about this institution. And so, you say well, what 
has that to do with the pay? And I say in my mind, that is the 
connection.
    The connection is what risks do you want to run with that 
institution? And in my mind, it is no more than a risk. You 
can't prove it. But it is a big risk. And I wouldn't run that 
risk at the point that the numbers start to show up where they 
are.
    And that is really my last point. My last point is, well, 
is the judiciary, are the judges special? No. No, compared to 
Congress, compared to the executive branch. And I believe your 
pay is right in the same place, the same place with the same 
problem. And I say if you start over a course of 40 years 
cutting the pay at the top of the forest service, you will find 
after 40 years that those trees aren't quite as well taken care 
of.
    And if you over a period of 40 years cut and cut and cut 
the real pay of the foreign service, you will find that there 
are more mistakes. And then there can be a snowball, you know. 
Cut at the top, morale drops, the job isn't done quite as well. 
You don't attract quite the people you once did. And it is slow 
and insidious. And over time, you find that treasure that you 
had is gone, or if not gone, weakened.
    I think it is the same with the other institutions. But I 
am a judge. And I have devoted more than 20 years to that job. 
And I believe I understand the institution. And every part of 
me says what is true every day, that this is a treasure to 
have, that courtroom where people come in and decide their 
disputes under law.
    And I see the judiciary pay 50 percent down. I see that as 
a genuine threat. And I hope very much the country--and it is 
the country won't run the risk with this institution. That is 
why I am here.
    Thank you.
    [The prepared statement of Justice Breyer follows:]
   Prepared Statement of the Honorable Stephen G. Breyer, Presiding 
          Justice, U.S. Supreme Court, Washington, DC












































































































    Mr. Berman. Thank you.
    Justice Alito?

TESTIMONY OF THE HONORABLE SAMUEL A. ALITO, PRESIDING JUSTICE, 
               U.S. SUPREME COURT, WASHINGTON, DC

    Justice Alito. Thank you very much, Mr. Chairman. Thank you 
for giving us the opportunity to appear here this morning.
    My colleague has studied this problem in great depth. And 
he has given you the big picture concerning the problem that is 
being considered here by this Subcommittee. I want to talk 
about this briefly in much more personal terms.
    As Chairman Berman mentioned before, I came to the Supreme 
Court last January. I had spent nearly 16 years as a Federal 
judge in Newark, New Jersey. And before that, I spent more than 
7 years in the U.S. attorney's office in New Jersey. And I want 
to focus just on the Federal judges in New Jersey that I knew 
so well.
    I have great esteem for the District Court for the District 
of New Jersey. It has historically been--and I think it still 
is--one of the finest Federal trial benches in the country. The 
judges there have handled some of the most important and the 
most complex civil and criminal cases in the country. And I 
think it is instructive to look at what has happened to that 
court in recent years. I think it illustrates a trend that I 
find quite disturbing.
    I took the year 2000 as a benchmark. In 2000, there were 17 
active judges on the district court for the District of New 
Jersey. Of those 17, 8 are still active. Nine are no longer on 
active status.
    Now, what happened to the nine who are no longer on active 
status? Only three of those are now on senior status. And that 
is quite a departure from the traditional practice and one that 
I think should be cause for concern because senior judges 
perform a very vital function in our Federal judiciary.
    I don't think that our courts of appeals or our district 
courts could continue to operate the way they do. In fact, I am 
certain they could not continue to operate the way they do if 
they were deprived of the services of the judges who elect to 
go on senior status. As I am sure the Members of this 
Subcommittee are aware, a Federal judge becomes eligible for 
senior status on reaching the age of 65 with 15 years of 
judicial experience.
    And over the years, the traditional practice has been for a 
judge to serve until that time or perhaps a little bit beyond 
that and then go on senior status. That creates a vacancy that 
can be filled so that the court will have additional manpower. 
But the senior judge continues to serve, continues on the 
district court level to try cases and is available to provide 
important help to new judges who need some time to learn how to 
be a judge.
    When I was on the court of appeals, I can't tell you how 
much I learned from sitting with senior judges. One of the 
senior judges when I joined the Third Circuit had 40 years of 
judicial experience. And I learned a great deal from him and 
the other senior judges whom I came to know when I sat with 
them. And, of course, the senior judges provide manpower that 
is desperately needed by the Federal judiciary.
    So the traditional pattern has been for a judge to serve 
until becoming eligible for senior status and then going on 
senior status. In the District of New Jersey since 2000, as I 
mentioned, of the nine judges who are no longer active who 
moved from active status to another status, only three elected 
to take senior status. What happened to the others? Six left 
the bench entirely. Two of them did it before they became 
eligible for senior status. And that is a very dramatic 
statement, I think, about the desirability of Federal judicial 
service.
    The Federal judicial pay structure is quite unusual. I 
don't know any other occupation or profession that has a 
structure like that. If a judge reaches 65 with 15 years of 
service, the judge can continue to get the judge's salary for 
life.
    But if for any reason, no matter how many years the judge 
has served, if the judge does not reach that age of 65 with 15 
years of judicial service and decides to leave for any reason 
other than disability, the judge gets absolutely nothing. And 
this is what these two judges who decided to leave the bench 
before becoming eligible for senior status decided was in their 
own best interest.
    One had been appointed by President Reagan and had 15 years 
of Federal judicial service. The other had been appointed by 
President Clinton and had 8 years of judicial service. One left 
to become a corporate vice president. The other left to become 
an attorney with a major law firm.
    Four judges became eligible for senior status, reached that 
point, but decided not to serve as senior judges. Three of them 
joined law firms. One joined a mediation service. In addition, 
another judge who had served for a short time as a senior judge 
decided to leave to join a major law firm in New Jersey. So in 
total, 7 judges of the 17 who--there were 17 active judges and 
a number of senior judges in 2000.
    Seven judges decided to leave the bench entirely. And they 
had a total of over 100 years of judicial experience. They did 
not go off into a retirement in any true sense of the word.
    They are people who are in good health. They are vigorous. 
They are still working hard in the legal profession. They are 
just not working any longer for the Federal judiciary. They are 
working in the private sector. They took their experience and 
their wisdom, and they left the Federal bench.
    Let me look at just one other thing. And that is the new 
judges who have come into that district since the beginning of 
the year 2000. By my count, 10 judges have joined that court 
during that time. Five of them were promoted from the position 
of magistrate judge. Two of them were attorneys with the 
Department of Justice. Only 2o of the 10 new judges who came in 
during that time came in from private practice. And this is 
also quite a departure from what we have seen in previous 
years.
    As my colleague said, I think it is quite important for the 
Federal judiciary to be representative of the community and 
representative of the legal profession. It is certainly--I 
don't mean to--when I speak of the figures of judges who came 
up from being magistrate judges or Department of Justice 
attorneys, I don't mean to suggest that is not good 
preparation. I would hardly say that since I spent my entire 
professional career before joining the bench as a Department of 
Justice attorney.
    But I don't think we want our Federal judiciary to consist 
only of people who have prior civil service experience or prior 
government experience. We want people from diverse professional 
backgrounds.
    So that is what has happened with this court, which I think 
provides a good illustration of the trends that I see emerging. 
The trend is more extreme in that court than it is in the 
country as a whole. But I think it is a harbinger. I think it 
is a sign of what is coming.
    I think we are approaching a very unfortunate tipping 
point. And if something is not done, then I am fearful that the 
Federal judiciary that we know and that we have come to depend 
upon will be fundamentally changed in future years.
    Thank you, Mr. Chairman.
    [The prepared statement of Justice Alito follows:]
Prepared Statement of the Honorable Samuel A. Alito, Presiding Justice, 
                   U.S. Supreme Court, Washington, DC














































    Mr. Berman. Thank you both.
    And I will now recognize Ranking Member Coble for 5 
minutes.
    Mr. Coble. Thank you, Mr. Chairman.
    And, the distinguished justices, thank you all for being 
here. I appreciate very much your testimony today.
    And, Mr. Chairman, I only have a couple questions.
    And you all may not know the answer to this. But I would be 
interested to know if you know of the Federal judges currently 
serving, I would be interested to know if many of them 
expressed concern or complained about salaries during the 
nomination process. Do you know one way or the other?
    Justice Breyer. I can guess. I would guess--I mean, I am 
guessing like you. It would be an unusual thing to do. Thank 
you very much for nominating me, but I don't think you are 
paying enough.
    Mr. Coble. Yes.
    Justice Breyer. I mean, if you think that, don't accept the 
nomination.
    Mr. Coble. That would be my--yes, I didn't mean for it to 
be such a rhetorical question. But that would be my guess.
    Justice Breyer. Yes.
    Mr. Coble. Do you concur, Justice Alito, with that?
    Justice Alito. I think that is fair, yes.
    Mr. Coble. And let me ask one more question, Mr. Chairman.
    Gentlemen, I assume it is your fear that if this business 
of salary is not addressed favorably that you have the fear of 
judges abandoning the bench.
    Justice Breyer. Well, many have.
    Mr. Coble. Or do you think not?
    Justice Breyer. Yes, yes is the answer. And what happens in 
reality in respect to both questions--and this is a reality I 
am talking about. I am thinking of colleagues of mine in the 
First Circuit, the district court there. And some of them are 
older. And they joined at a time--maybe some of them that--one 
of the older ones joined really, I think, in the early 1970's.
    And they said, well, you know, judges know what they are 
getting into. They are giving up a good salary. But what they 
think is that their salary won't be cut. That is what they 
think.
    Mr. Coble. Yes.
    Justice Breyer. And then when they discover that year after 
year it is cut, they feel that is a surprise. And they don't 
like it. And then sometimes what happens is they might join the 
bench young, late 30's even, or early 40's. And then by the 
time they are 50, what about the education of my children. What 
do I do with college? Now, that is a problem that every 
American faces.
    Many Americans can do nothing about it because they don't 
have a choice. But judges do have a choice. They could leave. 
They can go and work at that arbitration firm and do what they 
love doing and get paid five times the amount. And if your 
children are there--and maybe they don't get into Harvard. Or 
maybe they don't get into a school that has all these 
scholarships.
    Do you think you love them any the less? And we all know if 
that is what is at stake, you say, I am sorry. I loved being a 
Federal judge. I just can't do it. And that happens. That is 
not a made up thing. That is I see it happening, and it happens 
more and more. And so, the answer to your question is yes, 
absolutely.
    Mr. Coble. Justice Alito, did you want to be heard on this?
    Justice Alito. I speak to a number of judges. And I was 
talking to one recently. And he volunteered that he was going 
to have his resignation letter ready in his desk, and he would 
send it to the president on his 65th birthday. He would leave 
immediately as soon as he became eligible.
    Mr. Coble. Well, thank you both, gentlemen.
    Thank you, Mr. Chairman.
    Mr. Berman. Thank you, Mr. Coble.
    I recognize Chairman Conyers for 5 minutes.
    Mr. Conyers. This has been one of the most interesting 
public discussions from this Committee that I have ever heard. 
And I say that to congratulate both you jurists for coming to 
the public to discuss a sensitive issue. I am sure it could 
have been recommended to you just as easily all the great 
reasons why you should not have been present here today and let 
others be the witnesses for this hearing.
    And so, this remarkable public discussion is a tribute to 
our system where you both feel that you can come to us and risk 
talking about this and leave it up to the Congress, and by 
extension, the American people decide what to do. We have loads 
of difficult, challenging, dangerous questions to deal with in 
our existences. But this is so important to us because we have 
already started the discussion with why the judiciary is so 
different and so valuable in a democratic system of governing.
    The point that impresses me the most is this need for 
diversity. And diversity is the one thing that is slipping away 
from us as your salaries continue to decrease over the decades, 
as you have pointed out. And so, I think there could be no 
better way for the Congress to begin to inquire into this 
matter than to have two of our members of the United States 
Supreme Court join us in opening this discussion and looking at 
it from all kinds of perspectives the downside and what is good 
about it.
    And what I have taken from your discussions, members of the 
Supreme Court, is that de-linkage is really a thing of the 
past. There probably was a time in our history when it could be 
justified or there was a rationale for it that made sense. I 
don't think that exists any longer. And it is my belief that 
more and more of the Members of Congress who will decide this 
ultimately feel the same way.
    And so, we have started off our discussion in as fine a way 
as possible. And I just wonder if it is not also important to 
consider that being a member of the United States Supreme Court 
is the ultimate and the end point of anybody's life that gets 
to that point. Because if it isn't, then we demean the position 
of making these historic decisions that determine which way 300 
million people go from each day forward.
    And for that reason, I think that we have a heightened 
understanding of what the Supreme Court does, what judges do 
and how important their contribution is in our system of 
government. And I am so proud that you two chose to come 
forward today and put your experiences and your beliefs before 
the American people in the fashion that you have. And I thank 
you so very, very much.
    Justice Alito. Thank you. Thank you.
    Mr. Berman. Thank you, Mr. Chairman.
    I recognize the Ranking Member of the Committee, Lamar 
Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    Justice Breyer, in my opening statement, I mentioned the 
Breyer Committee and the recommendations that have come out of 
the Breyer Committee and the fact that there is a plan that 
will be, I understand, made public at the end of this year.
    Do you see any hope that we might actually see 
implementation of those 12 recommendations, say, by next year 
or in a relatively, you know, short period of time?
    Justice Breyer. Yes. The answer is yes. I have talked--I 
went over to the meeting of the chief judges of the circuit. 
And we discussed this. And they agree with all of them. And the 
Judicial Conference says we agree with all of them, and we will 
implement them.
    The key to this, I think, is to get the chief judges now 
and in the future to recognize that they might during the 
course of their career have one of these controversial matters. 
And then they have to have the help to treat it properly.
    And that means partly technical. It is partly a question 
of--well, I see Congressman Sensenbrenner is here. And he was 
very helpful on this. And we went through it. And it will be 
implemented.
    Mr. Smith. And the fact that these 12 recommendations are 
relatively or are non-controversial you think will lead to 
implementation perhaps in 2008?
    Justice Breyer. I would think so. I ask Jim Duff, who is 
here. He says absolutely. He told me before absolutely. And now 
he is just saying yes.
    Mr. Smith. Okay. Thank you, Justice Breyer.
    Justice Alito, appreciate your comments as well.
    If we increase the salaries of Federal judges 
substantially--and I would define substantially as, say, more 
than $10,000 or $20,000--isn't that going to put upward 
pressure on a lot of other salaries, be they Supreme Court 
justice salaries or the vice presidents' salaries or many other 
public officials' salaries? And if so, do you have any thoughts 
on how we might address that situation?
    Justice Alito. Well, I would certainly defer to the 
Members' expertise on that. But as Justice Breyer mentioned, 
there are many positions already in the executive branch in 
which the salaries exceed the salaries of district judges. That 
has already occurred.
    And I think what we are recommending is an adjustment of 
judicial pay so that it is more in line with the trend that has 
emerged in executive branch positions where I think there has 
been a recognition that salaries need to be increased.
    Mr. Smith. Right. I am just mentioning that I think there 
may be additional consequences if those salaries are raised to 
the $200,000 level, for example, that we will have other 
considerations to make. And maybe that is just for us to 
determine what we do with those other salaries as well.
    Justice Alito. I would not think there would be too many 
outside--that it would have an affect on many salaries outside 
of the judiciary.
    Mr. Smith. Okay, thank you.
    Mr. Chairman, I have a final question for both of our 
guests here today. And that is I have looked at the individuals 
who have retired since the beginning of 2005. And my 
understanding is that there have been 19. And my reading of the 
reasons that those 19 individuals have retired is that--and we 
are talking very small numbers here, which, frankly, makes 
another point about so few people retiring out of 1,200 Federal 
judges and those on senior status.
    But in any case, the way I read those reasons of the 
individuals who have left since the beginning of 2005 is that 
twice as many, six, have left within a short time after their 
pension has vested versus, I think, three who have left to go 
to positions that would pay considerably more.
    And that, in part, leads me to ask you all the question 
isn't it fair then in the context of raising or perhaps raising 
Federal judges' salaries to also consider reforming the pension 
system that goes with that increase in salary.
    Justice Breyer. It might. I see the problem.
    I think the senior judge system is an awfully good system 
because there are people who could retire and then they could 
do nothing or they could go to this arbitration firm and earn 
$1 million a year. And instead of doing that, if you can keep 
them, they then act like regular judges. That is, they do the 
workload and you don't have to create another position and you 
don't have to have more and more judges. So there are a lot of 
virtues to it.
    And so, you say suppose we look at it carefully. Is there 
room? I am not going to say there isn't room because I don't 
know it perfectly. But I do think it is a valuable thing.
    Mr. Smith. I agree with how valuable it is to have judges 
on senior status. My point was that it looks as if there may 
actually be a reverse incentive here. And that is to say, when 
the pension vests and the judges get full pay in their 
retirement, it looks like more individuals are taking advantage 
of that within a short time after that pension vests than are 
actually leaving the bench for higher paid positions.
    Justice Breyer. I see.
    Mr. Smith. And therefore, I think that that might justify 
looking at the pension system and thinking about reforming that 
in addition to raising the salaries of Federal judges.
    Justice Alito?
    Justice Alito. The pay structure for Federal judges is very 
unusual. It is certainly true that upon reaching eligibility 
for senior status or retirement a judge has a pension, so to 
speak, that is in relation to the salary the judge was getting 
when on active status, much greater than the vast majority of 
people do when they get a conventional pension.
    But on the other side, you would have to take into account 
that there are no survivors' benefits unless the judge pays for 
those himself or herself. And so, a judge with dependents has 
to take that into account during his or her judicial career.
    Mr. Smith. I understand. I think we ought to take a look at 
the whole package.
    Justice Breyer?
    Justice Breyer. You could. You could. I notice the--because 
I checked on it to see. I pay about--before taxes, I probably 
pay--and probably the Federal district judge, who this is 
really about, probably pays about 3.5 percent of the pre-tax 
salary, so that if the judge dies, his or her spouse will have 
a pension. You probably pay more than that because you are----
    Mr. Smith. Yes. Sure.
    Justice Breyer. So there is a difference in that.
    Mr. Smith. Okay. Thank you all for your answers.
    Thank you, Mr. Chairman.
    Mr. Berman. Just two housekeeping matters.
    One, I want to make it clear that any Member who had 
opening statements--unanimous consent that those statements 
will be included in the record.
    And now to proceed with the questioning, which is going in 
the order of seniority on the Committee, since I didn't say 
otherwise at the beginning, the gentlelady from Texas, Sheila 
Jackson Lee?
    Ms. Jackson Lee. Good morning.
    Let me thank our Chairman for what the full Committee 
Chairman indicated. Those of us who are lawyers certainly enjoy 
thoughtful discussions by our jurists. And particularly being 
reminded of my law school days, the constitutional law class 
and reading those opinions make your presence here today even 
more edifying. And I thank you so very much.
    I want to make a commitment personally as a Member of this 
body that this is the Congress, the 110th Congress--it has a 
certain ring to it--that we really need to finish the job. And 
I think your thoughtful remarks will help to contribute to 
that.
    And I want to just raise a series of points and raise 
possibly a response. It has come to my attention that the head 
of state of Singapore has a compensation of about $1 million. 
And I think the plight that we all face, both the congressional 
aspect, which is certainly more political and the jurists is 
that congresspersons and others make decisions that you 
disagree with, you don't want the best for them. You want the 
worst.
    If the Supreme Court goes your way or against your way, 
many times you don't want the best. You want the worst. So we 
are subjected to external assessments that provide additional 
pressures for really not answering the question of crisis in 
compensation. That is simply what we have.
    If we look at the many attempts--and I do think that de-
coupling does not help anyone. I do think an increase in 
compensation and a trigger on the COLA would be reasonable. And 
my colleagues will have an opportunity to ask questions. We 
want it further up than $20,000 or $30,000. We think that the 
numbers can go higher than that.
    But one of the issues that plays is the legislative process 
of amendments. And I notice in the Hatch legislation that was 
offered in 2004 we were moving along, and then we got a 
television amendment, television and a courtroom amendment. And 
that certainly is a problem.
    But what it does is it triggers a failure. And that can be 
part of this process going forward.
    Justice Breyer, what I want to know--I know the thoughtful 
12 points that you have in the Breyer Commission you indicated 
will be going forward. But what is the educational aspect that 
goes along with making this serious step of finishing the job 
of getting this compensation crisis addressed? Because each 
time we go forward, there can be you are on your side of the 
bench, table. I am on my side, but you know that there will be 
any number of amendments.
    Those amendments we call them in this side poison pills. 
And it doesn't get us anywhere. I think a thoughtful process, 
which Chairman Berman has now started--and I thank him--goes a 
long way. But if we don't jump the hurdle of educating the, if 
you will, pressure points--and let me make this one statement 
before I ask for you to respond.
    I think our salaries are under more transparency. You just 
got through saying what you spend for retirement. You just 
publicly made that statement. Someone will criticize us and 
say, you know, we are trying to be corporate executives with 
compensation. Those packages in most often--except for a bill 
we debated yesterday--those are personal, private packages.
    The golden parachutes are private packages. We are 
transparent. And I say to the public we will be even more 
transparent. But we have got to address the question of the 
crisis in compensation and the excellence that our public 
deserves.
    Would you respond to this educational aspect to getting the 
job done on this point?
    Justice Breyer. I don't think it is easy at all. I think 
you do. That is why I went into the matters I did. I think you 
have to say to a person, admit it, that you don't know what the 
exact number is. There is no way to know. But you do know this. 
Think of your being in a courtroom. And suppose you are one of 
the least popular people. You are not.
    I mean, suppose a person were the least popular person in 
the United States. Who do you want up there? I know he is 
making more money than you. I know she is paid a lot more. But 
whom do you want to have make these decisions that affect you 
so much?
    And maybe if you repeat that enough and you can get people 
to listen to that and, you know, all these numbers, I think, 
pale in significance. Do you know who noticed this as 
interesting? I was reading it. De Toqueville in 1840, he says, 
``My goodness,'' he says, ``look what they pay Members of 
Congress.'' He says that. And he was comparing it to the king 
of France, by the way. But he said the problem is that, just 
what you said, you have to help people understand it is their 
government. And pretty much they will get what they want. And I 
say here in this--and I was thinking of the other part of the 
executive branch.
    I have a--I looked down here. I have a cardboard box like 
this that is filled with pieces of paper, each one of which 
represents somebody over in that executive branch who is being 
paid a lot more than you or than the Federal judge. And I say, 
well--you say, you show them this and say, ``Look at the 
comparisons.'' You can show them the comparison over time.
    But ultimately, it comes down to well, what do you want by 
the way of a public servant? And if you don't want it, you 
won't get it. But you should want it. And I know it is self-
interested, but we believe that with our heart. That is the----
    Ms. Jackson Lee. Thank you very, very much, both of you, 
for your testimony today.
    Mr. Berman. The gentleman from Wisconsin?
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    I think both of our distinguished witnesses know that I do 
not favor de-linkage between congressional and judicial 
salaries and thus will be the skunk at the lawn party. And 
since both justices have a great reputation for asking tart 
questions from the bench during oral arguments, perhaps I could 
take a page out of their book.
    I was in the Congress when section 140 of Public Law 97-92 
was enacted. And the reason it was enacted is that a year 
before that Congress killed a COLA within hours or days after 
the effective date, but before anybody got a pay raise as a 
result of that. And a retired Federal judge saying that the 
killing of the COLA for the judicial branch violated the 
compensation clause of the Constitution. And lo and behold, the 
judges decided that it did. I don't know if it went all the way 
to the Supreme Court, but I believe that it did.
    I am one of those that believes that when you are dealing 
with constitutional officers of the government in all three of 
the branches--and you and we are--there should be some type of 
comparability in compensation since the branches are separate 
and co-equal. And as a result, the district judges salaries are 
tied to our salaries, and the Cabinet and the appeals court 
salaries are a little bit higher. And the Supreme Court 
salaries are a little bit higher than that.
    And that was as a result of a study of compensation 
commissions that we had in the decade of the 1960's, 1970's and 
1980's. Now, by breaking the link, I guess one is saying that 
there should not be comparability of salaries. I believe that I 
believe that. And I think that most of the American public 
does.
    And I think the real question that has to be answered is 
not whether you deserve more pay or you don't deserve more pay, 
but are the duties and responsibilities and time involved in 
discharging the duties of a Federal district judge worth that 
much more than the duties, responsibilities and time involved 
in being a Member of the House of Representatives or a United 
States Senator.
    Your Honors, the burden of proof is on you. And you can use 
the rest of the time to try to meet the burden.
    Justice Breyer. My answer to your question is no, of 
course, they are not. But that is why I said that at the end.
    I didn't say--and I don't think that our job is less, more 
important or less important to the American public than yours 
or the president's, certainly, or the executive branch. And I 
haven't really said very much about linkage. And I don't 
particularly--in a way, that is in your bailiwick. It is not 
for me to say.
    And what I say about that is look at the consequences for 
our institution, not of the--it is not a consequence of the 
linkage. It is a consequence of the failure to keep the judges' 
salaries up with the average Americans' salaries. That is the 
cut, cut, cut.
    And if you say that that is true of Congress, too, fine. I 
don't disagree with that. I agree with it.
    Mr. Sensenbrenner. Yes, with all due respect, Justice 
Breyer, since Wisconsin does not have a Republican senator for 
the last 6 plus years, I have been the gatekeeper for judicial 
nominations from my State that have gone to the White House. 
And there has been one district court vacancy and one vacancy 
on the Seventh Circuit. But let me say that there have been no 
lack of applicants for either of those positions.
    And I spent quite a bit of time interviewing them, even 
though we do have a commission in Wisconsin. And most people 
were quite eager, perhaps, to take a pay cut to become a member 
of the Federal judiciary. So we don't have that problem either 
with Members of Congress. Every election there seem to be a lot 
of people who want our jobs, particularly if there is no open 
seat.
    But it seems to me that, you know, you hit the nail on the 
head right, is that there ought to be comparability in 
salaries. And I believe that we ought to debate whether or not 
there should be a pay raise for both the judiciary and Members 
of Congress. People can vote yes, or people can vote no.
    But if you break the tie, then you are saying that one 
branch's responsibility and time spent is worth more than an 
equal branch. And I don't think that is what Madison and 
Hamilton had in mind.
    Thank you, Mr. Chairman.
    Mr. Berman. If I could just simply interject at this point, 
Justice Breyer, I do have to disagree with you. I think a 
direct consequence of what has happened to the judiciary in 
terms of salary is a result of the linkage. But more on that 
later.
    Justice Cohen?
    Mr. Cohen. Thank you, Chief Justice Berman.
    Justice Alito and Breyer, it is an honor to be here and 
have you all testify. It is an unusual circumstance.
    Justice Alito, you talked about the folks in the New Jersey 
bar who have gone away from the judiciary. Do you believe over 
these last 35 years or so--we have talked about the salaries--
that there has been a decrease in the quality of the people who 
have applied to be on the bench because of the salaries?
    Justice Alito. I cannot say that there has. I think it is 
the court that I know--the court in New Jersey--and the other 
courts are still of a very high quality. But I agree very much 
with the way my colleague phrased it in talking about the 
forest service and talking about the foreign service. If you 
keep cutting salaries year after year after year, you may never 
be able to find the year when you can say at this point there 
was a decrease in quality.
    But surely, over time that will happen. There will be a 
decrease in quality. And there will be a demoralization of the 
judges who are already on the bench. I think it is true that 
nobody takes a judicial position with complaints about pay in 
mind.
    But it doesn't take very long sometimes after going on the 
bench before a demoralization sets in. The judge begins to 
wonder how the judge is going to be able to pay for college 
tuition and other things on a judicial salary. And it has an 
affect on the way in which judicial duties are performed.
    Mr. Cohen. I would think that the argument about the 
forestry service might be better than the deans of law schools. 
I think probably they are more important, for one thing. But 
also they don't have to raise money. The deans of law schools 
who make way, way, way too much money--they have to raise money 
like the 501(c)(3) executives do, which you all don't, which is 
a wonder. We have to do it. It is an awful thing to do.
    Yes, sir?
    Justice Breyer. I thought it because this is also--your 
Committee, I know--the Subcommittee is very interested in 
intellectual property. And one thing that I----
    Mr. Cohen. That some would suggest there is a dirth of it 
up here.
    Justice Breyer. Well, one of the consequences, one of the 
consequences----
    Mr. Berman. Could you amplify that?
    Mr. Cohen. I would rather not. I guess I shouldn't have 
gone there.
    Justice Breyer. If you have a judiciary that is primarily, 
as it is now, made up of people who have come through this 
route of, say, assistant U.S. attorney or public defender, 
whatever, a magistrate, State court judge, you find fewer and 
fewer who have the intellectual property background. That is 
why I talk of diversity in a lot of respects.
    And you will find--which we are finding--and you ask 
people--you could ask them. I bet they would testify in front 
of you. Ask these firms and lawyers interested in intellectual 
property where are they going to get their disputes settled. 
They are going to arbitration. And you say, well, okay, so 
what.
    I would say yes, but the arbitrators don't make the rules. 
You see. And so, they are out there without--it is very 
complicated, as you know. I don't have to tell you that. I 
mean, you start talking about patents. You have the creation 
incentive. You have the dissemination need. You have people 
looking through thousands of old applications. And you have 
computers and intellectual--you know, you have everything under 
the sun. And it is very, very complex.
    And it is hard for judges to handle, very hard. It is hard 
for you. It is hard for any of us. And you start removing any 
possibility of having that expertise on the bench, that is just 
one area where everyone will run to arbitration. And this very 
important legal area will discover itself without the necessary 
governing rule.
    I mean, that is the kind of thing I look at when you start 
talking about, well, who is really on the bench.
    Mr. Cohen. Throughout in my opening statement, which an 
idea of maybe keeping the salaries coupled, but having the 
judicial salaries be 30 percent higher than the congressional 
salaries. Thirty is not a magic figure. Twenty, 25, 35 gets 
more magical, I guess, to you all. Is that something that you 
could find substance----
    Justice Breyer. Yes, I mean, what I do in my mind--the 
simple rule of thumb that I--really for the last 20 years I 
have had it in my mind is this. I have said to myself, look, 
the rule is supposed to be no diminishment of compensation. Let 
us keep it real, and let us say the compensation should stay 
the same compared to the average American that it was when I 
took office.
    That is what I think most judges would say. And Madison 
said that. And Hamilton said there shouldn't be any real pay 
cut. And moreover, if the country gets richer on average, the 
judges should benefit from that, but no more than the average 
American benefits from it. So I keep that as that rule of 
thumb.
    And that is why I put it in as the first graph. You know? 
There is the first graph. And I wouldn't compare it to 
Congress. And I wouldn't compare it to some other group. I 
wouldn't compare it to anybody. I would say just let us keep 
that number steady.
    Mr. Cohen. Thank you.
    Justice Breyer. That is how I look at it.
    Mr. Cohen. I yield the balance of my time.
    Mr. Berman. I thank the gentleman.
    The gentleman from Virginia, Mr. Goodlatte?
    Mr. Goodlatte. Thank you, Mr. Chairman. And thank you for 
holding this hearing.
    And, Justice Breyer and Justice Alito, welcome. And it is 
an honor to have both of you with us. I know Justice Breyer 
quite well. And I have not met Justice Alito before. But by 
reputation and his work on the court I have great respect for 
him and for both of you.
    I also am very concerned about de-linkage. And I think a 
lot of questions remain unanswered. You have raised some 
interesting ones here today.
    I would first start by saying that I think that every 
member of the Federal judiciary is underpaid. I don't argue 
that one bit. But I think it is the nature of public service 
that you are always going to be underpaid no matter what we do 
to resolve this issue in comparison to those who practice 
before your court and the lesser courts simply by virtue of 
what they can do in the private sector.
    I mean, this is an issue that is enveloping the whole 
country. It has been pointed out repeatedly here in the 
Congress that the compensation of the highest officers in 
America's corporations is many, many more times as much as the 
average worker than it was a number of years ago. And you are 
suffering from that same comparison when you talk about members 
of the bar and the compensation that they receive as well.
    But I share your concern about diversity. You noted that an 
increasing percentage of members of the Federal judiciary have 
already served in State and local judicial positions before 
moving up. However, I think that raises a lot of questions 
about the reason for that. And it may or may not be 
compensation.
    It is true that the compensation in the Federal courts is 
generally quite a bit higher than that in the State courts. But 
it is also true that the process by which one goes through to 
become a Federal judge has changed in its character over time. 
And it may well be that presidents, be they selecting 
conservative judges, liberal judges, moderate judges, whatever 
their ideological mindset might be. It may well be that 
presidents have decided that it is easier and safer to choose a 
judge to promote than it is to go into the private sector for a 
couple of reasons.
    One, the judge has a judicial record already that can be 
examined to determine what type of judge they might be in the 
Federal court. Another is that judges are under a certain 
amount of scrutiny at any level. And that scrutiny assures that 
some of the problems that arise with the sometimes very 
appropriate, but sometimes very nitpicking and unfair questions 
that judges are asked when they are confirmed by the Senate 
cause presidents to nominate people who are already judges.
    Now, the question then becomes what is the pool that the 
presidents are choosing from. Is it a larger pool of judges? Or 
is it still a very diverse pool?
    I would argue that it is probably still a very diverse 
pool. And we ought to look to other reasons why that diversity 
is not occurring on the court.
    The diminishment of compensation--obviously a very, very 
accurate consideration. And the constitutional mandate that 
your compensation not be diminished is a certainly important 
consideration. But when one goes back to look at the 
compensation of judges at the beginning of our country, one has 
to look at the quality of life and standard of living they 
enjoyed.
    And no Federal judge today lives a lesser quality of life 
than the best judge at that time because of the simple fact 
that our society and economy has evolved and the technology has 
evolved to provide a much, much better way of life in terms of 
almost anything you look at from health care to education to 
the quality of the homes people live in and so on. It has all 
changed. So I am not sure there is a constitutional violation 
by not having increased pay based upon rates of inflation.
    And finally, I have looked at the list that you have 
provided of other folks primarily in the executive branch who 
have been paid more than members of the judiciary, Members of 
Congress, Cabinet members and so on. And obviously, it is a 
little disconcerting. But it also is very understandable.
    They are overwhelmingly doctors. And the second largest 
group by far are lawyers. The doctors serving in V.A. medical 
hospitals do not have the same kind of changed environment 
moving from a private medical practice where they make many, 
many times sometimes more money than they do even at these 
higher salaries than the Federal V.A. hospitals and other 
similar hospitals. But they also do not enjoy any significant 
change in their circumstance.
    A lawyer becoming a judge, as was noted by the gentleman 
from North Carolina, has a very different set of circumstances 
in terms of being on the bench, presiding over and having at 
their command a host of people that are at their service to 
make sure that justice is provided. So I have a great respect 
for what you do and a great understanding for the dilemma that 
you find yourselves in and the Congress finds itself in. But I 
also believe that this needs to be examined much, much more 
closely.
    There are many questions. I may submit some to the Chairman 
to see if he is interested in having the Committee look into 
trying to get answers to them. But lots of unanswered questions 
before I would be willing to say that the judiciary should 
surge ahead of the executive branch or the legislative branch 
in terms of compensation.
    I thank you, Mr. Chairman. I know I have used up all my 
time. If they care to respond, I would certainly welcome it.
    Justice Breyer. I will say one thing. It is interesting 
what you say. And I know our special interest in this, which 
has been the foreign law. And on that, two things you might 
want to look at. And one I mean--I mean both quite seriously 
actually.
    What worries me is that our judiciary becomes like the 
French, Belgium, continental style system. And that is an 
administrative system. They are fine people, fine judges.
    The other thing that might interest you to look at in 
respect to what you are talking about with Congress and the 
linkage and so forth is both in Britain and in Canada they have 
tried what they call reverse linkage. That is to say they focus 
on what the judges you say, well, it might come to the same 
thing. Maybe it does. But the difference is they have really 
kept up with inflation, indeed, kept up with the increase in 
the average standard of living and sometimes gone ahead of it 
for all the branches because it has been keyed to the judges.
    Mr. Berman. We are going to have a vote very soon. You 
don't make enough to have to come back here after we are gone 
for two votes.
    So I recognize the gentleman from California, Mr. Schiff. 
And keep in mind those bells will be going off soon.
    Mr. Schiff. Thank you, Mr. Chairman.
    You know, at the outset I wanted to state what may be the 
obvious, which is, much as I am a supporter of increasing 
judicial salaries, this is not a popular cause. The only people 
that have ever come to lobby me to raise judicial salaries are 
judges and State bar presidents who want to be judges. The rest 
of the public never raises this issue. It is not on the radar 
screen.
    There is only one thing, in fact, less popular than raising 
judicial salaries, and that is raising legislative salaries. 
And as we don't enjoy the same life tenure that you do, raising 
our own salaries can be very problematic, which is one of the 
reasons why I don't support linkage at all.
    I think Mr. Sensenbrenner gives the most articulate case in 
favor of linkage that I have ever heard. It is not the case I 
usually hear made for linkage, which has more to do with 
Members' hopes that somehow we can bootstrap a salary increase 
for Members of the legislature with members of the judiciary. 
But I have never found an appealing argument to the public to 
say we have to increase congressional salaries so that we can 
increase judicial salaries.
    That doesn't seem to be very effective advocacy. So I don't 
think the linkage has served us well. And I from Los Angeles 
and the judicial community know judges who have left the bench 
to become private arbiters or go back to private practice who 
have looked at things that in the past Federal judges would 
never have considered, have left the bench to go to the State 
court.
    I mean, it is really quite extraordinary when you have a 
situation, which I am sure is going to be true of all your law 
clerks who will leave and in their first year in private 
practice make more than you are. So, you know, I think to keep 
a strong judiciary, to get the very best people on the bench we 
have to make a change.
    I am intrigued by something that Mr. Smith raised that I 
wanted to ask you about. And I ask the question, you know, as 
someone who is a firm believer in de-coupling and in raising 
judicial salaries. He raised the issue of pensions. And I am 
hopeful--I hope it is not misplaced. I am hopeful that this 
year and this session is the year that we will raise judicial 
salaries.
    There may be a question about whether to raise salaries by 
X amount or raise salaries by less than X--or raise salaries by 
more than X but at the same time making changes to the pension 
system maybe to deal with the inverse incentive that Mr. Smith 
raised.
    And I wanted to just get your impression. I know you can't 
speak at this point for all the judges, but how you think 
judges would feel about, for example, you know, phasing in the 
level of the pension over time so that we don't have a strong 
incentive the year you retire to retire early.
    Give judges a stronger salary on the front end and 
throughout their career on the bench, but have a retirement 
structure that is phased in to keep judges on the bench longer 
and also to make a public case for something that is not 
terribly popular. To say we are raising judicial salaries but 
making reforms and in some ways, reducing judicial pensions 
makes it a more saleable legislative work product.
    So I would be interested to know your reaction to that. I 
would assume because of the constitutional provision that the 
current bench would be grandfathered in terms of their 
pensions, maybe not only because they are vested, but because 
of the constitutional provisions. So it would have little 
downside to the sitting members of the bench.
    But thinking in terms of the judiciary's institution, would 
the judiciary be well-served by that kind of a package?
    Justice Breyer. I don't know what you will get from me at 
this moment because I haven't thought it through. When I listen 
to it, it sounds like it might. I think there the question is 
in the details. And it doesn't strike me as something you would 
rule out. And I think it would be a question of how you did it 
and what the details were.
    That is my own off-the-cuff reaction. And you are asking 
off-the-cuff, which is dangerous for me to answer off-the-cuff.
    Mr. Schiff. Yes, I am. I won't hold you to it then.
    Justice, do you have any other thoughts?
    Justice Alito. Well, my answer would also be off-the-cuff, 
and it would be purely personal. But I have long thought that 
the Federal--that the salary structure and retirement benefits, 
so to speak, for article 3 judges are very strange and that the 
structure and pension benefits for non-Article 3 judicial 
officers, magistrate judges, bankruptcy judges were more in 
line with general practice and made more sense.
    Mr. Schiff. My time is expired.
    Thank you, Mr. Chairman.
    Mr. Berman. If I recall, part of the logic was to 
incentivize those people who are past their prime to leave 
gracefully. Having reached the age I am now at, I think we 
didn't quite evaluate what past the prime meant.
    Mr. Keller?
    Mr. Keller. Thank you, Mr. Chairman.
    I want to thank Justices Alito and Breyer for being here.
    I have heard your testimony today and also read the recent 
comments of Chief Justice Roberts. The gist of your arguments 
collectively, the three of you, can be described in my notes as 
these three: First, the current pay for Federal judges is 
unfair. Second, you have concerns that some judges may leave. 
And third, you have some concerns about attracting good people 
from the private sector in the future.
    And I remain open minded on all three and wanted to hear 
everybody's questioning of you. But to play the devil's 
advocate a bit, there is going to be people watching this at 
home on C-SPAN, and I am going to ask you the questions that is 
probably on their mind, if you don't mind, and then give you a 
chance to respond.
    So first on the unfairness issue--Supreme Court justices 
make $203,000 a year. Judge Judy makes $28 million a year. Life 
ain't fair. The Supreme Court writes landmark opinions like 
Marbury v. Madison. Judge Judy wrote a book called, ``Don't Pee 
on My Leg and Tell Me It is Raining.'' Life isn't fair.
    Chief Justice Roberts makes $212,000 a year for presiding 
over our most important cases. Simon Cowell makes $43 million a 
year for judging Sanjaya. Life isn't fair. Collectively, 
Justices Breyer and Alito make about $406,000 a year. The Olsen 
twins made $40 million last year. Life isn't fair.
    Here is the point. Any taxpayer-funded occupation will 
never be a route to wealth. And that is true whether it is a 
teacher, a firefighter, a police officer, a judge or a senator. 
It is not fair, but it is reality. And we all know the reality 
going into these positions. And Federal judges, like Members of 
Congress, make more money than 95 percent of the population.
    So, Justice Breyer, would you agree with me that while 
judges in the Federal bench should make more, it is unrealistic 
to expect that Federal judges be paid an amount that is 
commiserate with what they would make in the private sector?
    Justice Breyer. I have never even in my most fanciful 
dreams dreamt I would earn Judge Judy's salary. [Laughter.]
    I think absolutely correct is your answer.
    Mr. Keller. Okay.
    Justice Breyer. And I would add only one other thing, that, 
don't compare the Supreme Court in this. I mean, for one thing, 
we are old. I hate to tell you. He is not. But our children are 
educated. And to be a Supreme Court justice, lightning has to 
strike twice.
    Mr. Keller. Right.
    Justice Breyer. And it is quite a special thing. And if it 
were a matter of only our salaries, I don't think there is one 
person that would be here.
    Mr. Keller. Okay.
    Justice Breyer. We are talking about the Federal district 
judge, the Federal court of appeals judge. And there what they 
have seen is, as I say, not just what the level is. I agree 
with you. Life isn't fair in respect to compensation, 
particularly and a lot of other things besides. But it is the 
down, down, down, down over the course of--you can do it 5 
years, 10 years, but then it becomes 15. It becomes 20. It 
becomes an entire working lifetime.
    And it is that, the continuous erosion compared to the 
average American that begins with the demoralization. And then 
just it doesn't quite have that edge. And then you worry 
about--you see, it is all that snowball. And it eventually 
changes the institution.
    Mr. Keller. And, Justice Breyer----
    Justice Breyer. And that is what we are worried about.
    Mr. Keller. I hate to interrupt you because I want to ask 
you a couple more things.
    And, Justice Alito, before you respond to that, Justice 
Breyer has testified he is not articulating a specific position 
today on the de-linkage issue. Are you articulating any 
specific position on de-linkage?
    Justice Alito. No, I am not. I agree with what he said. I 
certainly think that what Members of Congress should be paid is 
separate--is a matter for you to consider.
    On Judge Judy, I would just say this. My mother religiously 
watches Judge Judy almost every afternoon. And she thinks that 
Judge Judy does a much better job than we do and deserves more 
money.
    Mr. Keller. Let me just ask my second question because I am 
running out of time. And I have nothing against Judge Judy, by 
the way. So please don't send me letters out there.
    The second issue--you are concerned about people leaving. 
Let me play devil's advocate. And I am going to stop and let 
you answer both questions. And again, I am open minded, but I 
have got to ask you this.
    There are approximately 1,200 Federal judges on the bench, 
including those who are in senior status. We are losing on 
average about six judges a year over the past 6 years according 
to a recent report from Chief Justice Roberts. That means 
approximately 99 percent of the judges are staying and not 
leaving.
    Justice Roberts has called this a constitutional crisis. 
Justice Alito has said today he is worried that there may reach 
an unfortunate tipping point. And Justice Breyer said you are 
worried this may be a stepping stone for other jobs.
    In light of the great retention rate, is this really a 
crisis? And, Justice Breyer and then Justice Alito, and then I 
am out of time.
    Justice Breyer. Well, if you say 10 less last--I think it 
was--you know, I see 21 people over at the arbitration, Federal 
judges who have given up their job to do that. And you say is 
that a lot or a little. And you say it is just a little because 
there are so many others. I say it is a lot. And the reason I 
say it is a lot is it is maybe age. But when I was in law 
school and in most of my career, it was unheard of, unheard of.
    You couldn't say never, but that a Federal judge, a Federal 
district judge would leave in order to take a better paying job 
in the arbitration. I mean, you know, sometimes that would 
happen. But my goodness. And that is why it is the examples, 
and it is the growing numbers, and it is the threat of even 
higher numbers that makes me think if I hear that word stepping 
stone--and it can be so subtle.
    It can be so subtle that no one even admits it to himself. 
When I hear stepping stone or think stepping stone instead of 
capstone, then you get the reaction, which is just the one you 
heard today. And it is really what brought us over here.
    Mr. Keller. Justice Alito, do you want to respond to that?
    Mr. Berman. I think we have to----
    Justice Alito. Okay. All right.
    Mr. Berman. I am sorry. Unless you are urgently needing to 
respond, I recognize the gentlelady from California.
    Ms. Lofgren. Thank you, Mr. Chairman. And thank you for 
holding this hearing.
    I don't have a huge number of questions. I would just like 
also to thank our colleagues from California, Mr. Schiff, and 
Congresswoman Biggert for their efforts in putting together our 
group that interfaces with the judiciary. I have participated 
on a number of occasions. I think it is very helpful in having 
the branches deal with each other in a respectful way, which I 
think is enormously important.
    And I say that in preparation to the next comment, which I 
would ask you not to respond to, which is unfortunately this 
hearing follows on the heels of a decision yesterday that is 
wildly unpopular with not only me, but my constituents. And I 
say that because the issue of pay for judges is not pay for 
performance. It is pay for independence.
    And it is important that those of us in America support the 
judiciary's independence when we agree with their decisions and 
when we disagree with their decisions. And I do. And that is 
why I very much agree that it is necessary to de-link the 
connection between pay for the judiciary and pay for Members of 
Congress.
    I also--you know, recently the California State Bar 
Journal--that lawyers in California get every month did a 
survey of publicly employed lawyers. And the county council 
associates are earning more than the district court judges. And 
I don't begrudge the county councils or the city attorneys. But 
the fact is that the pay for district court judges has gotten 
wildly out of step.
    And I think it is correct--the justices and Justice Breyer 
just said, you know, to be a member of the U.S. Supreme Court--
there are probably people in the country eminently qualified 
who would do it for free for the opportunity to do it. But the 
dynamic is very different in the district court. People are 
already making financial sacrifices. And that seems hard to say 
when it is a lot of money to most Americans. But it is 
relative.
    So I would just like to ask this question. And I was also 
thinking about the linkage. When I was in local government, I 
was on the board of supervisors. And I think the board of 
supervisors was paid something like $20,000 a year for a full-
time job that was, you know, 10 or 12 hours a day. And we 
didn't want to just raise our own salaries.
    And so, what we did was we said we will be paid 80 percent 
of whatever a municipal court judge is paid. And the State sets 
their salary, so we will never have a say in how we are paid. 
And that is the question I have, I guess, for the justices 
prospectively.
    If we do something to address the gap that has been created 
in judicial pay, is there a way--do you have a recommendation 
on how we could structure--I mean, ultimately the Congress has 
to appropriate. I realize that. But to structure some other 
entity that could advise with great credence the Congress on 
future pay increases so we don't create this problem again.
    Do you have an idea on that, Justice Breyer?
    Justice Breyer. I would look at Canada. And I would look at 
that legislation. And I would look at Britain because that is 
interesting. The example you raise is the third instance I 
have--those are the other two I know about. I didn't know about 
the Los Angeles.
    Ms. Lofgren. Santa Clara County.
    Justice Breyer. Yes, I am sorry.
    Mr. Berman. In Los Angeles, it is 100 percent of what the 
judges were paid--not 80 percent.
    Ms. Lofgren. We were the first. They copied us.
    Justice Breyer. Well, the public has accepted that. And 
they have seen the need in those places. So I would look 
carefully at those two systems.
    Ms. Lofgren. I would just say one thing. And I know our 
time is almost up.
    But, Justice Breyer, you mentioned an interesting point 
about intellectual property--well, they are all district court 
judges--but leaving to be arbiters for I.P. disputes. And it 
occurs to me that that could do great damage to the development 
of the law because those arbitration agreements don't have 
precedential value.
    And it is important that the court be in a position to make 
decisions, you know, throughout not with great time spans in 
between because of the pace of technological change. Do you 
think that is unreasonable?
    Justice Breyer. No, I agree with you. I mean, if people 
want to go to arbitration, that is fine.
    Ms. Lofgren. Of course.
    Justice Breyer. I am for that. But if they all desert the 
court, then what will happen is exactly what you say, in my 
opinion.
    Ms. Lofgren. Justice Alito?
    Justice Alito. No, I think that is an excellent point.
    Ms. Lofgren. With that, Mr. Chairman, given that we are 
about to have votes, I will yield back.
    Mr. Berman. I thank the gentlelady.
    And the gentleman from Indiana, Mr. Pence?
    Mr. Pence. Thank you, Mr. Chairman.
    And to Justice Breyer and Justice Alito, thank you for 
provocative and engaging testimony. And I have an open mind. I 
have spoken to members of the judiciary in Indiana. And I am 
very interested in the questions that are raised.
    But I must also tell you I hope, Mr. Chairman, that some 
recording of this hearing will make its way into government 
classes around America. I have been a plaintiff before your 
bench. I like this side of the bench better.
    But it seems to me that, as Chairman Conyers said, there is 
an extraordinary example here in your willingness to come to 
open yourselves up to this process that demonstrates the co-
equal nature of the branches of our government. And I commend 
you for that personally, just as another public servant. Thank 
you for your witness of our form of government today.
    And the point that I find most provocative and would invite 
you both to use whatever time I have remaining to address is 
this question of capstone. I candidly was not familiar with 
that term as a concern.
    But, Justice Breyer, as you referred to that, I guess I am 
a small town boy from Southern Indiana. I can't think of a 
higher calling in life than to serve as a member of the Federal 
judiciary. And I find it deeply troubling to think that there 
is as a result of unintentional erosion of compensation that 
has occurred over the last generation that, in fact, our 
Federal judiciary has become a stepping stone in the course of 
career of men and women for whom it should in every sense be 
our objective that it would be a capstone.
    I wondered if I just might ask you to expand. I will have 
your testimony, and I will review the transcript. But I think 
that is a point greatly worth amplifying in what is it--are we 
just talking specifically about monetary remuneration.
    Are there other ways that we could ensure that we are 
saying to our brightest and our best, ``Have a productive life 
in the private sector or in the public sector. But consider as 
a capstone of your career the opportunity to serve in an 
independent judiciary as a way of fulfilling a lifetime of 
service to the community.'' How do we accomplish that?
    Justice Breyer. It is a very good question. I think, as I 
am sure you do, human beings are pretty complex. We are moved 
by so many different motives. We don't always know what those 
motives are. And compensation is in there as one of them.
    And in my own life, I did have a chance after a number of 
years on the bench to take a different job. I didn't think I 
would be on the Supreme Court. No one thinks that, not a hope.
    So it was a question of would I or would I not. And there 
are a lot of things to be said for it. And money was--no, it 
was--no, not really maybe. Who knows? You see? And I didn't 
take it.
    And I remember driving back to the court, which at that 
time was in a rather scruffy building and there were big 
creaking doors opening going down this basement. And there were 
some law enforcement people there. I thought to myself when I 
drove in that day, good. I thought, good, I like this job. I am 
a Federal judge. And I love being a Federal judge. And it is 
fabulous.
    And I would feel that way were I not on the Supreme Court 
and in my old job. So I understand what you are thinking. And I 
agree. And so, when I see instances--and there are--and we know 
that that plays a motivation. It is the absolute amount in 
part, and it is the down, down, down part. And that is what I 
fear the most. And that is why I said it about five times.
    It is the stepping stone. No, not a stepping stone direct 
in your mind, not a stepping stone shadow, not a stepping stone 
when you secretly think to yourself in the middle of the night 
why am I doing this. No, no, no. It is the capstone. And it has 
been, and that was always true when I was growing up. And if 
there is one thing I want to keep, it is that.
    Justice Alito. I think there is a dangerous--I am sorry, 
Mr. Chairman. I think there is a disturbing trend. And that is 
what I tried to say in my opening statement. I think 
compensation is a major factor why people are leaving the 
bench. There are other, there are other concerns. Security 
concerns are much more serious now than they used to be.
    A lack of privacy is a greater concern than it used to be, 
a tremendous increase in the amount and the complexity of the 
work. Some of my former colleagues on the courts of appeals are 
now personally handling 500 cases a year.
    That is an enormous, enormous--if you think about how many 
cases, how much time you have to handle each of those appeals, 
500 cases a year--that is an enormous workload. And the cases 
are becoming more and more complex. So there are many things 
that are making a judicial career less attractive. I would say 
compensation is the number one factor.
    Mr. Pence. I thank both the justices.
    Mr. Chairman, I hope as the Committee considers this at the 
Subcommittee and the full committee level that we also think 
broadly about what other disincentives there might be in 
addition to compensation that might be moving us toward a 
stepping stone status away from a capstone.
    I yield back. Thank you.
    Mr. Berman. Thank the gentleman.
    And the gentleman from California, Mr. Issa?
    Mr. Issa. Thank you, Mr. Chairman. I realize we have got a 
vote on, so I will try to be brief so you don't have to drag 
folks back here.
    Justice Alito, I received a call from one of your former 
fellow clerks who briefed me ad nauseum as to the San Diego 
court and sort of got me thinking in a different way than I 
might otherwise have. Without mentioning his name, he knows 
that I am thanking him for you.
    I do think that a political entity being linked to an 
entity that once appointed is non-political. I mean, you are 
the ultimate in political entities until the day you are 
confirmed. And thereafter, I trust, that you aren't. But I do 
have a couple of questions.
    First of all, U.S. attorneys make about $140,000 year. And 
it is the ultimate stepping stone. Right? Everyone understands 
that is for a short period of time and you will then move on to 
better, greener pastures, in most cases.
    Administrative appointments--those are all stepping stones 
with rare exceptions. We have had a few that perhaps won't go 
on to better. But the vast majority of them find great 
financial gain post those positions.
    You are kind of unique in that it is a capstone. And I 
think we all agree on the dais that it should be.
    But I am going to ask--I am going to put you on the spot in 
a reverse way for a moment.
    First of all, Justice Breyer, I will ask you one quick 
question. Those 21 judges--how many of them, do you think, had 
retirement pay coming to them from their time as Article 3 
judges?
    Justice Breyer. I don't know.
    Mr. Issa. But you would assume most of them or many of 
them.
    Justice Breyer. Probably a significant number.
    Mr. Issa. Okay. So just as a hypothetical, one of our 
challenges is that if you decide not to make it a capstone, the 
retirement being relatively quickly earned could be part of the 
problem, too, because you get to have your cake and eat it, 
too.
    I am not sure we are going to change that, but I think that 
is something for those of us who are looking at possible 
changes in your compensation need to be aware that part of your 
compensation is a late to the bench quick compensation, which 
may encourage people that are going to work until 80 not to 
choose senior status but rather choose some other employment.
    If we were to de-link, even for one day and then re-link, 
would the best commission be one that wasn't essentially done 
at the auspices of your A.O. or the Congress? In other words, 
do we have the level of independence in evaluating what it 
takes to attract, which I agree with Mr. Sensenbrenner. We 
attract very well and retain, which is what, I think, both of 
you were saying is the upcoming problem.
    Should we have a truly third party? And should we do it in 
some way that formalizes it? In other words--and this is a 
hypothetical.
    We de-link. We have an independent commission. We agree in 
advance that we will accept the package of the commission 
unless we vote otherwise. And then for, let us say, 10 years, 
the normal time between our political events of redistricting, 
we leave it linked with just cost of living and then every 10 
years we commission a new study and go through that again. Is 
that something that hypothetically could take you out of this 
political conundrum that your graph shows so well?
    Justice Breyer. Not so easy to do. We have the Volcker 
Commission, which did make a report, pretty totally 
independent, as far as I know.
    Mr. Issa. Right. But then it had to get into our politics.
    Justice Breyer. Yes. But they tried it, remember, with the 
quadrennial commission. And that was supposed to do just what 
you say. And it was all coming along just fine when President 
Reagan was there. It was all approved and so forth. And then it 
got into the political environment. And then it just didn't 
happen.
    Mr. Issa. Right. And that is----
    Justice Breyer. Very, very hard--I mean, maybe something--I 
am simply saying we have had some experience, and it is by no 
means a sure thing. And then I would go back and say I want to 
see what they have done in England and Canada and so forth. So 
it is not something there are obvious objections to. It is not 
something guaranteed to work.
    Mr. Issa. Okay. And then I will ask the harder question. I 
am one of the Members that was fortunate enough to do well in 
business before I came here. This is my capstone. And I didn't 
come here for a paycheck. But I do see many Members of the 
House who leave to be lobbyists because they have kids going to 
college.
    Our constituents aren't aware that we don't get per diem. 
If you bring your judges here to Washington, they get per diem. 
They get essentially compensated for all their costs of being 
here. Members of Congress don't.
    Is part of our problem--and this is putting you on the 
spot, as I said I would. Is part of our problem that we can't 
come to grips with our own compensation in a fair and impartial 
way and that leads to us being unfair potentially to both of 
you, or at least to the judges beneath you?
    Mr. Berman. If I were your lawyer, I would advise you not 
to answer that.
    Mr. Issa. Mr. Chairman, there is only question that we all 
have to have. And that is whether or not we are fair to 
ourselves. Can I ask unanimous consent that they be allowed to 
answer?
    Justice Breyer. Do I think you are fair to yourselves?
    Mr. Issa. Yes, Justice.
    Justice Breyer. What I really think?
    Mr. Issa. Yes, Justice.
    Justice Breyer. No, I think you are not. I think you 
haven't been. I said that. I said I think that there are 
problems with Congress. There are problems with top levels in 
executive branch. There are problems all over the place.
    And I said the reason that I haven't expressed myself on 
the other problems is I am a judge and I know my institution 
and I understand the political difficulties surrounding this. 
And, I am a judge who knows my own institution, not the others. 
And, two, I understand politics about one-tenth to one-one 
thousandth as much as you do. So there we have it.
    Mr. Berman. We have had second bells. I am going to have to 
bring this hearing to a close. I do want to make one point in 
closing. There may be wonderful meritorious reasons for 
linkage. And a logic, a governmental, institutional logic to 
it. There may be deep ideological commitments to linkage. But 
do understand, not that this is a position you need to speak 
on. We are going to have to address the issue.
    To the extent people say I will not give up on linkage, 
they are saying, notwithstanding your arguments, 
notwithstanding the risks, notwithstanding what you see 
happening, the consequences, all the different factors and its 
affect on potentially the quality of the bench, we are saying 
no to your request because from 24 years experience, if we 
insist on linkage, we will end up saying no to any change in 
the judicial salaries.
    Mr. Conyers. Mr. Chairman?
    Mr. Berman. Yes.
    Mr. Conyers. These jurists have inspired, I think, from 
this discussion more Members of Congress will assess this 
problem in a much larger frame than we started out before this 
morning.
    And I am very, very indebted to you both for your 
contribution toward this subject.
    Mr. Berman. Well, with that and without objection, the 
hearing record will remain open until the close of business 
next Wednesday, April 25, for submission of any additional 
materials.
    And we really do thank you both for coming down, and hope 
it wasn't too miserable an experience.
    [Whereupon, at 12:09 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record


------------
    A total of 53 exhibits were submitted for the record. All of the 
exhibits submitted are not reprinted here but are included in the 
official hearing record on file with the Subcommittee on Courts, the 
Internet, and Intellectual Property. The exhibits not reprinted are 
Vacancy Announcements of employment opportunities at various Government 
Agencies, such as the announcement shown in Exhibit 3. Some of the 
announcements were accessible on the Internet, from such web sites as 
www.usajobs.gov, www.avuecentral.com, www.cftc.gov, www.quickhire.com, 
www.fdic.gov, www.federalreserve.gov, www.occ.treas.gov, www.ots.gov, 
and www.epa.gov.


























































                                




                                




































                                




                                




























                                




                                 
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