A career as federal judge isn't what it used to be
Limited pay, ugly fights for Senate approval yield fewer applicants for job of 'judge.'
A federal judgeship may offer lifetime tenure and represent the pinnacle of a legal career, but evidently it isn't quite the plum it used to be.
That's what federal judges in Miami found when just eight lawyers expressed interest in a vacancy that once would have attracted dozens of ambitious attorneys.
The shrinking pool of aspirants points up two major drawbacks to serving on the federal bench these days: Salaries are far lower than what fresh-faced law-school grads can make at big corporate firms. Just as off-putting, the Senate confirmation process can drag on so long that nominees feel their careers are in limbo.
"It's a bitter, ugly process," says Edward Davis, chief judge of the district court in Miami at the time a judgeship came open two years ago. (He has since left the bench for a more lucrative job with a law firm.)
These difficulties - exacerbated by early retirements among sitting federal judges - are bringing subtle but significant changes to the face of the federal bench.
Today's candidates are less likely to have recent experience in the private sector - and a much larger share is independently wealthy. In the end, some legal analysts warn, the changes point toward a federal judicial system that may command less respect and stature than it has in the past.
If President Bush's first year of judicial nominations is any guide, the task of recruiting and retaining judges won't get any easier. Several candidates approached by the Bush administration declined the offer, the White House says, while most of those who accepted are having their nominations held up in the Senate.
In Mr. Bush's first year in office, the Democratic-controlled Senate confirmed 28 of his 70 nominations, leaving 100 vacancies unfilled. Democratic leaders say the switch in control of the Senate and the aftermath of Sept. 11 explain much of the delay, but others say it's also motivated by revenge.
"In a sense, the Republicans asked for this, because it's the treatment Clinton nominees got for years. But it doesn't make it right," says one former Clinton judicial nominee.
Some legal observers say candidates to lower courts are receiving the same scrutiny once reserved only for the US Supreme Court. That's because the high court is hearing fewer and fewer cases, while the trial-level district courts and the 11 Circuit Courts of Appeals are increasingly the final forum.
Even as politicians and observers place blame for the holdups, judges say nobody is doing much to fix another problem: salaries.
District-court judges earned $145,100 last year, the same as members of Congress. But that salary falls far below what most could pull in at law firms. After several promised cost-of-living increases weren't enacted, veteran judges' purchasing power declined 13 percent during the 1990s, according to a American Bar Association report.
Taken together, these factors have meant changes in the types of candidates interested in federal judgeships. Prior to the 1990s, new federal judges were equally likely to be from public-sector jobs as they were to be private attorneys, according to data compiled by Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst.
But under both Presidents Clinton and Bush, 60 percent of new judges have come from the public sector, and 40 percent are private attorneys.
At the same time, an increasing proportion of judicial nominees are millionaires. The share of new district-court judges with a net worth of more than $1 million increased from 4 percent under President Carter to 38 percent under Mr. Clinton, Professor Goldman's analysis shows.
More of those who aren't independently wealthy are opting to leave the bench for better-paying work elsewhere. Between 1991 and 2000, 52 district and circuit-court judges resigned or retired from the bench, compared with 78 in the previous 25 years.
The latest departure is Joe Kendall, who became a district-court judge nine years ago when he was in his late 30s. He thought he'd stay there for the rest of his career, but instead, he announced earlier this month he will leave in February for a Texas law firm.
Paying for his two children's college education left him little choice, Mr. Kendall says. "It was one of the hardest decisions I've ever made in my life at an emotional level."
Some point out that the prestige of judgeship still serves as a lure. "Those interested are motivated by public service, not by pay, and that has always been the case," says Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.
But others are concerned that those who do accept judgeships bring less diversity of work experience to the job. "It's just not as broad a net," says Carol Heckman, a lower-level federal-magistrate judge in Buffalo, N.Y., who left the bench in 2000.
William Rehnquist, chief justice of the Supreme Court, warns that the US may eventually resemble countries with civil-law traditions, where a subset of lawyers spend their entire careers in the same track as judges - rather than reaching the top levels of the judiciary at the pinnacle of their careers. Without this sense of promotion and prestige, the respect that American jurists traditionally receive could be lost.
To help alleviate the situation, a report by the American Bar Association last year recommended that judges receive automatic cost-of-living adjustments. And observers say that every judicial nomination should get a hearing before the Judiciary Committee.
"That should be a fairly quick process," says former US Rep. Mickey Edwards. "Have a hearing and then move a nominee to the floor and let the entire Senate vote."