[Congressional Record Volume 155, Number 162 (Tuesday, November 3, 2009)]
[Senate]
[Pages S11060-S11061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Hatch, Mr. Leahy, and Mr. 
        Graham):
  S. 2725. A bill to provide for fairness for the Federal judiciary; to 
the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce the Federal 
Judicial Fairness Act of 2009.
  I want to thank my cosponsors--Senator Hatch, Senator Leahy, and 
Senator Graham--for working with me on this important legislation.
  The salaries of our Federal judges are eroding in their real buying 
power over time. This bill would solve that problem.
  Over the past 30 years, pay for Federal judges has declined 
dramatically. Since 1969, the inflation-adjusted salaries of Federal 
judges have dropped by 24 percent, even as other Federal workers have 
received an average salary increase of 18 percent.
  The way the pay system works now, Federal judges are at a stark 
disadvantage each year for receiving a cost-of-living adjustment to 
keep their salaries in pace with inflation. While most Federal civilian 
employees receive an automatic cost-of-living adjustment, Federal 
judges do not. Instead, they currently receive an adjustment only if 
Congress passes a special law and also provides an adjustment for 
itself.
  Judicial salaries should not be ensnared in Congressional-pay 
politics. Judges should simply be on the same system that other Federal 
employees are.
  That is what this bill would do.
  It would repeal ``Section 140,'' which currently requires Congress to 
pass a special law each year in order for judges to receive a cost-of-
living adjustment; and it would provide judges with an automatic, 
annual cost-of-living adjustment under the same General Schedule used 
for other Federal civilian employees.
  In other words, the bill would simply put Federal judges on an even 
playing field.
  Why is this important?
  The drop in real pay for Federal judges has created what Chief 
Justice John Roberts has called ``a Constitutional crisis.'' More and 
more judges are being forced to leave the bench for financial reasons 
during what should be the peak years of their judicial careers.
  Recently, the Federal court for the Central District of California 
lost a U.S. District Judge, Stephen Larson, after only 4 years of 
service. Larson had been a public servant for over a decade and said 
that because of his large family, he was finally faced with an 
impossible choice: He could either continue serving the public as a 
judge, or he could retire from the bench in order to be able to afford 
a college education for his children.
  Judge Larson's story is not an anomaly. The Federal bench has lost 
103 judges since 1990, 80 percent of whom ended up taking other, 
usually higher-paying, positions in the private sector.
  The problem is especially acute in high-cost states like California. 
In California, State court judges have higher salaries than Federal 
Article III judges.
  The rate at which our Federal courts are losing judges has increased 
by 24 percent since the 1990s, even as caseloads have gone up and the 
replacement process has slowed down.
  Departures like Judge Larson's are only half the problem. As former 
Federal judge and former Representative Abner Mikva has pointed out, a 
primary effect of the erosion of judicial salaries is to discourage our 
Nation's most talented lawyers from joining the bench in the first 
place.
  In 1969, the salary of a Federal district court judge was about 20 
percent higher than the salary of a top law school dean and about 30 
percent higher than that of a senior law professor at a top law school. 
Today, judges make only two-thirds the salary of similarly credentialed 
law professors, and half the pay of deans.
  In many cases, judges make less than first-year associates fresh out 
of law school.
  The bill that I am introducing today does not say that Federal judges 
should make as much as law firm partners or law school deans. It simply 
says that Federal judges should not be at a disadvantage vis-a-vis 
other Federal employees in getting a cost-of-living adjustment each 
year. It simply ensures that the salary Congress intended judges to 
receive will keep pace with inflation.
  Congress has already delayed action on this issue for too long. Our 
Nation now risks losing both our most experienced judges and the next 
generation of talented jurists.
  As early as 2003, the nonpartisan National Commission on the Public 
Service, also known as the Volcker Commission, concluded that ``the lag 
in judicial salaries has gone on too long, and the potential for the 
diminished quality in American jurisprudence is now too large.''
  I believe that the legislation that I am introducing today with 
Senators Hatch, Leahy, and Graham is a straightforward solution. It is 
not a raise. It is simply an assurance that judges will not have to 
jump through special hoops or rely on the politics of Congressional pay 
in order to get the cost-of-living adjustment received by other Federal 
employees.
  I do not believe that judges should expect to make the kind of 
salaries available to partners at private law firms. The rewards of 
public service are of a different kind. But we must ensure that 
judicial service remains a viable option for the most talented members 
of the bar.
  Basic fairness requires that judges' salaries not diminish over time. 
It is time to provide these critical public servants with a fair pay 
system that will guarantee the future health of the judiciary.
  I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2725

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Judicial Fairness 
     Act of 2009''.

     SEC. 2. JUDICIAL COST-OF-LIVING INCREASES.

       (a) Repeal of Statutory Requirement Relating to Judicial 
     Salaries.--Section 140 of the resolution entitled ``A Joint 
     Resolution making further continuing appropriations for the 
     fiscal year 1982, and for other purposes.'', approved 
     December 15, 1981 (Public Law 97-92; 95 Stat. 1200; 28 U.S.C. 
     461 note), is repealed.
       (b) Automatic Salary Adjustments.--Section 461(a) of title 
     28, United States Code, is amended to read as follows:
       ``(a) Effective at the beginning of the first applicable 
     pay period commencing on or

[[Page S11061]]

     after the first day of the month in which an adjustment takes 
     effect under sections 5303 and 5304 of title 5 in the rates 
     of pay under the General Schedule, each salary rate which is 
     subject to adjustment under this section shall be adjusted by 
     an amount, rounded to the nearest multiple of $100 (or, if 
     midway between multiples of $100, to the next higher multiple 
     of $100) equal to the percentage of such salary rate which 
     corresponds to the overall average percentage of the 
     adjustment in the rates of pay under the General Schedule.''.

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