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34–757 PDF 2007

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 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

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 

RICK BOUCHER, Virginia 

MARTIN T. MEEHAN, Massachusetts 

ROBERT WEXLER, Florida 

MELVIN L. WATT, North Carolina 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ZOE LOFGREN, California 

HOWARD COBLE, North Carolina 

TOM FEENEY, Florida 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

SHANNA WINTERS, Chief Counsel 

BLAINE MERRITT, Minority Counsel 

(III)

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

(1)

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. 

2

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 

3

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 

4

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 interbranch 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 

5

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 

6

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.’’

7

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 

8

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 nonVerDate 0ct 09 2002 13:40 Nov 07, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\041907\34757.000 HJUD1 PsN: 34757
9

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—

10

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. 

11

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. 

12

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:]

13

PREPARED STATEMENT OF THE HONORABLE STEPHEN G. BREYER, PRESIDING JUSTICE, 

U.S. SUPREME COURT, WASHINGTON, DC


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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. 

67

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. 

68

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:]

69

PREPARED STATEMENT OF THE HONORABLE SAMUEL A. ALITO, PRESIDING JUSTICE, 

U.S. SUPREME COURT, WASHINGTON, DC


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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 

93

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 

94

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. 

95

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. 

96

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. 

97

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. 

98

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 coequal. 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 

99

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 

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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 

101

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. 

102

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. 

103

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. 

104

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-thecuff, 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? 

105

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. 

106

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 delinkage 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, 

107

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 

108

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. 

109

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, 

110

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 

111

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 

112

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.] 

(113)

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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