Shortly after midnight on January 1, I expect, Chief Justice John Roberts’ third year-end report on the judiciary should be posted here at the Supreme Court’s website. Last year, in his second such report, the chief justice made a terribly flawed argument that there is a “constitutional crisis” in the third branch of government owing to the failure of Congress in recent years to raise the pay of federal judges to adequate levels (adequate as the chief saw it, that is). I criticized that report here at the time.
Now comes a very careful, dispassionate report by Kevin Scott of the Congressional Research Service, who has analyzed the issue pretty exhaustively. He concludes that there has been a decline in real dollars in the value of judicial salaries since a peak was reached in 1991, but that salaries today are about on a par with the historic average of judicial salaries since 1955. What is the consequence of the recent decline from the peak? The money paragraph in his introductory summary is this:
Examination of the available evidence on the effect of judicial salary on judicial recruitment and retention suggests (1) trends away from appointing judges directly from private practice and toward appointing federal judges who are already in the judiciary (as state judges or federal bankruptcy or magistrate judges) date to before the most recent decline in judicial salaries, (2) federal district court judges are not resigning from the federal bench at rates much higher than historical averages, and (3) the percentage of judges who chose retirement in lieu of senior status has also not risen markedly in the last several years. From an examination of data on judicial departures, we are unable to identify a conclusive relationship between judicial salary and federal district court judges’ decisions to resign or retire.
In other words, no staffing problems, no wave of retirements–no crisis. I hope that in this year’s report, the chief justice has decided to change the subject.