The Constitution itself says little about federal judges, except for two provisions: life tenure, and a bar against reduction of their salaries. Both, says Duff, are "pillars of judicial independence," and both are "directly in play" because of the current level of pay for judges.
Judges have long argued that when Congress does not even give them cost-of-living adjustments -- none was given last year, or in several years during the 1990s -- it is, in effect violating the salary-reduction provision of the Constitution. Real earnings of judges have declined by nearly 25 percent since 1969, Roberts pointed out.
But the impact of salary on the life-tenure provision of the Constitution is emerging as a strong argument as well, Duff says. Judges are leaving the bench at a higher rate than ever before -- 17 in the past two years alone -- obviously shortening their tenure.
Beyond that, at a more subtle (though equally ominous) level, Duff expressed concern that the purpose of life tenure might be thwarted in other ways by salary concerns.
