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Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":

In his recent year-end report on the state of the federal judiciary, Chief Justice John Roberts has renewed his call for an increase in judicial pay, claiming that the problem has "now reached the level of a constitutional crisis and threatens to undermine the strength and independence of the federal judiciary."

Longtime VC readers will not be surprised to learn that I disagree with the Chief Justice. In series of posts a few months ago (see here and here), I criticized earlier calls for a judicial pay increase, including Roberts' argument in his previous annual report. To briefly summarize, my main points were that federal judges have an exceptionally low turnover/resignation rate and there is little or no evidence that the quality of federal judiciary is suffering because salaries are too low. Nor is it accurate compare federal judges to partners at big firms (as advocates of a pay increase often do) because judges 1) have better retirement benefits, 2) have much shorter and more flexible hours, and 3) often have more interesting work and other nonpecuniary benefits (e.g. - power and prestige) that law firm lawyers (and even we professors!) get less of.

All of these points are equally applicable to the Chief Justice's latest call for a judicial pay increase. At the very least, they deflate the somewhat hyperbolic claim that the state of judicial pay is a "constitutional crisis." As I noted in one of my earlier posts, current judicial pay is not exactly low:

Chief Justice of the Supreme Court: $212,000

Associate Justice of the Supreme Court: 203,000

Court of Appeals Judge: 175,100

District (trial) Judge: 165,200

Yes, these salaries are lower than what partners at top private firms make, but for the reasons indicated in the linked posts, that does not prevent the federal judiciary from attracting and retaining top-quality people. In his reports, Chief Justice Roberts tries to justify a judicial pay increse by comparing judges' salaries to those of other types of lawyers who make more money. However, the key public policy question is not whether judges make as much money as Group X, but whether judges' salaries are high enough to attract the level of talent we need.

In the current report, Roberts adds to his earlier argument by making the claim that judicial pay should increase because, unlike in 1969, when federal district judges had higher salaries than the Dean of Harvard Law School, today district judges earn "less than half" as much money as deans and "senior professors" at "top law schools." Even if the data Roberts cites is accurate, it doesn't justify a judicial pay increase. The vast majority of law professors earn far less than district judges do ($165,200), and while law professors have good retirement benefits, they are not comparable to those of federal judges (retirement at full pay for any judge who has reached the age of 65 and has had at least 15 years of service). To the extent that the comparison between judges and law professors is appropriate at all, one should compare total compensation, not just salaries, and one should also compare the judges to the full range of law professors, not just "senior professors" at a few top schools. The comparison to top law school deans is even more misleading than that to law professors. A law school dean has to run an institution with dozens of faculty and staff and hundreds of students, as well as be expert in law. Federal judges have much less managerial responsibility than this. It is no more inappropriate for federal judges to have lower salaries than top law school deans than it is for them to have lower salaries than corporate executives.

I don't blame Roberts for advocating increases in judicial pay; lobbying for the interests of his fellow judges is arguably part of the chief justice's job and Roberts' predecessors (Warren Burger and William Rehnquist) took the same position in their own annual reports. Nonetheless, his case for a judicial pay increase is far from compelling.

UPDATE: As Orin notes in his post on this issue, Roberts also claims that failure to raise judicial salaries as much as he believes necessary has caused what he considers a negative change in the composition of the judiciary:

An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.

Like Orin, I believe that Roberts fails to prove that the change is either 1) harmful, or 2) caused by a decline in judicial pay relative to private sector pay. Since the Eisenhower Administration, there has been a major increase in the size and scope of the federal government, leading to the employment of many more government lawyers. The change cited by Roberts may simply be a result of the increasing percentage of lawyers working in government.

Related Posts (on one page):

  1. Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":
  2. How Much Should Federal Judges Be Paid?:
Beerslurpy (mail) (www):
If I remember correctly, justice roberts was making 7 figures before he left private practice.
1.2.2007 9:39pm
BobNSF (mail):
But don't you understand? If the pay isn't raised to the level of corporate attorneys, how are courts ever going to appeal to enough "conservatives"? Stacking the judiciary will never work without higher pay!!!
1.2.2007 9:40pm
Karl2007 (mail):
Prof. Somin,

I've heard a number of stories of law firm partners being approached about judgeships who declined to be considered because they couldn't take the salary hit.

Are these stories true? And how do they factor in to your views?
1.2.2007 9:52pm
Ilya Somin:
Are these stories true? And how do they factor in to your views?

I don't know if the stories are true or not. But even if they are true, the don't affect my views much. There are far more good lawyers who want to be federal judges than there are available judicial positions. Even if some top lawyers are unwilling to give up higher pay to become a judge, there are more than enough who are.
1.2.2007 10:00pm
Lev:
Yeah, Roberts is right. Stevens and Kennedy and Ginsberg are hanging on because if they retired they would have to go on food stamps and live with their emaciated but lovable dogs and cats in the freeway underpasses with their shopping carts.
1.2.2007 10:11pm
r78:
Karl

I passed on a state judgeship for that very reason.

Don't get me wrong, I will probably try to get a judgeship in 6 or 7 years after both my children are out of college. But the simple fact is that I couldn't pay for their education making "only" $125K a year. (And, yes, I know very well that $125K a year is still a lot of money to most people in this country.)
1.2.2007 10:27pm
frankcross (mail):
Ilya,

Your post sounds a little like those who would cap CEO pay on the grounds that there are plenty of people who can do the job. And there are, but some will be better than others and reducing the pool will reduce the quality.

The analogy isn't perfect, but this is a market. A free market in labor. And paying more money will expand the pool of candidates and get higher quality. Now, the definition of quality can be debated and the value of quality can be debated, but you can't fight the free market.
1.2.2007 10:28pm
Debauched Sloth (mail):
One can't help but imagine what Roberts the all-star appellate advocate would have done to an adversary (or indeed a Hogan associate) who advanced such thoroughly unpersuasive arguments in a brief.

It's good to be the king!
1.2.2007 10:32pm
Ilya Somin:
Your post sounds a little like those who would cap CEO pay on the grounds that there are plenty of people who can do the job. And there are, but some will be better than others and reducing the pool will reduce the quality.

With CEO pay, there is a competitive market in both demand and supply. Those who hire the CEOs and determine their salaries are spending their own money. Moreover, if a firm is spending too much on CEO pay, its stock price is likely to suffer, and the shareholders will have an incentive to address the problem (or it could be addressed by others through a hostile takeover). Not so with federal judges.

The analogy isn't perfect, but this is a market. A free market in labor. And paying more money will expand the pool of candidates and get higher quality. Now, the definition of quality can be debated and the value of quality can be debated, but you can't fight the free market.

For the reason pointed out above, this is not really te same as a private sector market. I don't deny that raising salaries might attract more people. But that logic can be used to justify virtually infinite pay increases. Given that there are already many more good candidates who would like to be federal judges than open slots, and that federal judges have an extremely low turnover/resignation rate, there is no proof that increasing salaries will lead to increases in quality that justify the added expenditure.
1.2.2007 10:41pm
Paxti:

I don't know if the stories are true or not. But even if they are true, the don't affect my views much. There are far more good lawyers who want to be federal judges than there are available judicial positions. Even if some top lawyers are unwilling to give up higher pay to become a judge, there are more than enough who are.


No kidding. Even if one leaves aside the fact that $165,000 is a lot of money, the non-pecuniary benefits of a judgeship are significant. I'll take one if nobody else wants it.
1.2.2007 10:49pm
frankcross (mail):
The analogy was imprecise but the point remains. When you say there are "already many more good candidates . . . than open slots" that makes no sense from a market perspective. That's true for CEOs. But what if you don't want a good candidate, what if you want one of the best available candidates? The low turnover/resignation rate doesn't actually prove a lot, because it only shows that those who took the job like it and says nothing about those better candidates who chose not to take the job.

Your first point cuts to the heart of the question, though. It suggests that better judges might not be worth the cost of the additional pay, and the government would not provide a good market check. I doubt this, but it's where the debate lies.
1.2.2007 10:53pm
DG:
I have no strong opinion on judicial pay, but Prof. Somin's argument seems incomplete at best. In his original post, he mentioned that there is "no shortage of outstanding lawyers who would love to become federal judges" and also pointed out that "[v]ery few, if any, other occupations" have as low a turnover rate as the federal judiciary.

But even assuming these two empirical observations to be true, there may nevertheless be reasons to be concerned. If the number of interested people per vacant judgeship is decreasing relative to where it has been historically--even if it's still high relative to other professions--the "quality" of the judiciary is also likely to be decreasing. As a rough analogy, it's similar to decreasing applications at a top college. If fewer people are vying for every spot at Harvard, average student "quality" is likely to be decreasing. Whether that is a problem is open for debate, but it's not a simple question.

Same for the turnover rate. It may be low compared to other professions, but if it's getting higher relative to where it has historically been, judicial quality may be suffering.

Maybe the effect is so small or the historical quality was so high that the quality will continue to be "good enough" for a long time. But maybe not. I would at least want to watch the trend carefully and put it in its historical context--especially since historical judicial performance is really the only halfway-measurable benchmark we have against which to measure current judicial performance.

Even ingnoring these possible effects, I can think of several other reasons why we might want to pay attention to judicial salaries:

1) To minimize the posibility that federal judges will find unethical ways to supplement their incomes. I am strongly in favor in increasing Congressional salaries for this reason. Judges seem to be much better at playing by the rules, but, again, I'd want to see how the situation today looks by historical standards.

2) To foster economic diversity among judicial nominees. It will always be relatively easy for those with large savings to take jobs in the judiciary, and there may always be enough such people to keep the judiciary packed with high-quality judges. But I would worry about the political ramifications of a judiciary filled with the independently wealthy. The Chief Justice makes a similar point on page 7 of his report.

I'm sure there are more possibilities that I'm not thinking of right now.
1.2.2007 10:55pm
unhyphenatedconservative (mail):
I'll offer the following deals to the judges: Give the job of running our country back to the elected officials and I'll gladly support increasing your pay.
1.2.2007 10:55pm
Ilya Somin:
The analogy was imprecise but the point remains. When you say there are "already many more good candidates . . . than open slots" that makes no sense from a market perspective. That's true for CEOs. But what if you don't want a good candidate, what if you want one of the best available candidates?

Neither Roberts nor (to my knowledge) anyone else has shown that there is any significant number of better candidates who will become available with a pay increase. Moreover, it's not clear that we do want the best possible people. If they get the cases right and have good legal reasoning, I'm not sure we gain much from further improvement in the quality of candidates.


The low turnover/resignation rate doesn't actually prove a lot, because it only shows that those who took the job like it and says nothing about those better candidates who chose not to take the job.

Again, neither Roberts nor anyone else has show that there IS any significnat number of "better candidates who chose not to take the job." Roberts' own analysis focused on resignations, which is why I discussed it. It also has some independent value, since many top judges (including Roberts himself) choose to go into the judiciary and stay there despite the supposedly "low" salary. Moreover, the fact that the resignation rate is so low compared to other professions is also indicative. It suggests that it is very hard to come up with a job offer that would tempt even the most potentially wealthy of federal judges to leave their positions.
1.2.2007 11:00pm
Byomtov (mail):
With CEO pay, there is a competitive market in both demand and supply. Those who hire the CEOs and determine their salaries are spending their own money. Moreover, if a firm is spending too much on CEO pay, its stock price is likely to suffer, and the shareholders will have an incentive to address the problem (or it could be addressed by others through a hostile takeover).

I agree with your opinion about judges' pay, but this is naive beyond belief. The Directors are "spending their own money?" The market is competitive?

Bought any bridges lately?
1.2.2007 11:04pm
Ilya Somin:
If the number of interested people per vacant judgeship is decreasing relative to where it has been historically--even if it's still high relative to other professions--the "quality" of the judiciary is also likely to be decreasing.

There is no evidence that this is true. Certainly Roberts hasn't provided any.

Same for the turnover rate. It may be low compared to other professions, but if it's getting higher relative to where it has historically been, judicial quality may be suffering.

The increase Roberts points to in his report is pretty small - enough so that it could easily be the result of random chance.


To foster economic diversity among judicial nominees. It will always be relatively easy for those with large savings to take jobs in the judiciary, and there may always be enough such people to keep the judiciary packed with high-quality judges. But I would worry about the political ramifications of a judiciary filled with the independently wealthy.

This actually contradicts Roberts' main argument, which is that low salaries make judicial positions unattractive to the most successful (and wealthiest) of private sector lawyers. If raising judicial salaries will attract more top private lawyers, this would decrease the economic diversity of the judiciary, not increase it. If you want more judges from relatively less wealthy backgrounds, you should probably be arguing for a decrease in pay, which might deter some of the better-paid lawyers from taking the job, while still providing enough pay to incentivize the poorer ones.
1.2.2007 11:07pm
anonVCfan:
Professors are permitted to supplement their income by consulting or collecting expert witness fees, and they allowed to coast once they get tenure.
1.2.2007 11:11pm
Ilya Somin:
Professors are permitted to supplement their income by consulting or collecting expert witness fees, and they allowed to coast once they get tenure.

The first point is correct. The second point, however, applies to judges as well, since their "tenure" is even more ironclad than that of tenured academics.
1.2.2007 11:16pm
Ilya Somin:
The Directors are "spending their own money?" The market is competitive?

Bought any bridges lately?


The directors are spending shareholder money, and the shareholders can easily dump a company's stock or remover the directors if they spend too much on CEO pay. There is a large economics literature showing how both of these mechanisms are quite effective. By contrast, voters can't sell their "stock" in the US government and are unlikely to vote out their congressman because he voted for an increase in judicial pay.
1.2.2007 11:18pm
Dave Hardy (mail) (www):
If he's having trouble finding appointees at that pay, I will be happy to volunteer.

Esp. since I'm told it involves a month's paid vacation and in the 9th circuit, another month, all expenses paid, at a judicial conference, which for some reason is always held in Hawaii.

I'm told the best job, tho, is the magistrate. 90% of the pay of a district judge, for holding initial appearances, arraignments, and an occasional civil trial.

The one point of agreement might be with the Supreme Court positions, since they have to live in DC, where the cost of housing is pretty high. But 165 grand will take you pretty far in Tucson, and the federal bench here is first-rate. The most recent appointee is a guy who left a senior partnership at the most prosperous civil defense firm in town.
1.2.2007 11:24pm
Byomtov (mail):
the shareholders can easily dump a company's stock or remover the directors if they spend too much on CEO pay. There is a large economics literature showing how both of these mechanisms are quite effective.

The shareholders can easily remove the directors? Are you kidding? That is simply wrong. Directors are typically nominated by management and run unopposed. A seat on the board of a major American corporation is, in general, a very well-paid sinecure, controlled by management. To put up a competing slate is enormously expensive and complicated.

There is some economics literature of the type you describe. There is also literature that explains the problems of corporate governance that lead to excessive compensation.
1.2.2007 11:29pm
Random Commenter:
"But the simple fact is that I couldn't pay for their education making "only" $125K a year."

Good God... The sheer horror of this image -- that your kids might have to earn scholarships, go to public universities with the proles, or, the ultimate horror: get student jobs -- is almost unbearable. I feel your pain.

"But I would worry about the political ramifications of a judiciary filled with the independently wealthy."

The notion that nobody who lives in polite company could possibly scrape by on a mere $162k per year is amusing. This is not the sort of argument I would float with the public to justify shoveling more dollars at judges.
1.2.2007 11:37pm
Randy R. (mail):
Sheesh. All this bellyaching because six figures is just NOT ENOUGH MONEY. How in the world is a man supposed to provide for his family, and put his kids through college on such a paltry sum?

In a country where the average family earns less than $30,000, where any judge of any sort lives better than most of the people who come through his courtroom, this idiot has to argue that they need more money or they won't work.

And then conservatives like to blame liberals like me for being elitist and out of touch with the average American, and everyone wonders why lawyers are hated so much. Double sheesh.
1.2.2007 11:40pm
Ragerz (mail):
I am in agreement with Mr. Somin. The idea of there always being a "best" judge out their is illusory anyway. While certainly, a certain level of intelligence is required, surely there is a diminishing marginal return to increased intelligence for judges. Beyond some point, our assessment of how "good" a judge is doing is likely to be more a function of how likely they are to agree with our own approach to interpretation and judgment, rather than increased intelligence.

For example, for those who believe in original meaning originalism, would you rather have a judge with an IQ of 135 an LSAT score of 165, and a law school GPA of 3.2 who also following that methodology, or would you rather have someone with an IQ of 165, an LSAT score of 178, and a law school GPA of 4.0 who thinks like, say Earl Warren or Steven Breyer or David Souter? Probably, you would prefer someone who is more in sync with your own beliefs regarding interpretation rather than simply more intelligent.

The point is, our view of what "best" is certainly is going to be a function of how we think one should go about the judicial function. In turn, our views of how one should go about the judicial function is not exactly a function of intelligence. (Though, of course, more intelligent people are more likely to have complicated ideologies. But this may not always be a plus if you prefer something like "common sense" in judging.)

Overall, there obviously are plenty of people who are more than qualified and willing to become federal judges. We are not likely to get very much in terms of better judgment merely by offering more pay. Indeed, if anything, more pay may lead to worse judgment among judges, as the perspective of judges who have absolutely no financial concerns may be quite divorced from the perspective of the rest of us. Maybe it is a good thing when a federal judge has to worry about paying for private school for his or her kids. Welcome to the real world that the rest of us face!

That said, it might make sense to make some adjustments to pay (if is not adjusted already) for federal judges based on where they work. After all, living in New York City on a salary of $165,000 is a very different thing than living on that same salary in, say, Boise, Idaho.
1.2.2007 11:43pm
Randy R. (mail):
You know, all I've heard in the past few years is how out of touch judges are with the American public. Just tune in to Fox News, and you hear about how judges can't make common sense decisions like average joes can.

So okay -- let them win this battle. Let's reduce judges' pay to $30,000 per year. Most of them will leave for the big law firms, and the average American can sit on the bench and give the kinds of decisions Sean Hannity and George Bush really want. Think of the savings!
1.2.2007 11:44pm
Andrew Cowan (mail):
Despite the Chief Justice's curiously-flimsy reasoning, it does seem reasonable to ask that Congress:

1) Tie judges' pay to inflation
and
2) Give judges regional cost-of-living adjustments, the same as civil service employees get. $165.2 kilodollars is not the same salary for a judge in DC as it is for a judge in Iowa or Oklahoma. Federal judges in the Western District of New York make substantially more, as compared to their cost of living, than federal judges in the Southern District of New York.
1.3.2007 12:16am
Beerslurpy (mail) (www):
I would love to be a judge someday when I have gotten a decent amount of practice under my belt but I would bet good money that the opportunity will never arise unless I take great pains to make friends with all the right people and secure a nomination. I have been told (by a few judges, including state supreme court judges) that getting nominated (and most judgeships require nomination) is all about knowing the right people and being in the right place at the right time when they need someone who matches your background.

In short, I strongly suspect the process has absolutely NOTHING to do with money. People get there based on connections and political expediency and they stay there because the job is presitigious and interesting. I doubt anyone who accepts such a position is really so desperate for money that 125k vs 500k a year is really going to put them in the poorhouse. I have prospered on less than 125k a year, and that in an industry with zero job security (programming).
1.3.2007 1:00am
DRJ (mail):
Should the judiciary be drawn primarily from lawyers in the private rather than the public sector? Emphatically, yes.

Where's Beldar when we need him?
1.3.2007 1:05am
Perseus (mail):
How in the world is a man supposed to provide for his family, and put his kids through college on such a paltry sum?

Such a model of the household might make conservatives like me feel warm and fuzzy inside, but these days, don't most spouses of judges (some of whom are women) work outside the home at some point during their lives, thus boosting total household income?
1.3.2007 1:06am
PatHMV (mail) (www):
The fact that some people WANT to believe that money shouldn't be a motivating factor in people's decisions to become judges doesn't make it so. As another commenter said, this is indeed a market. You cannot, will not find enough truly qualified people who are willing to do the job while being paid something closer to the average American's salary.

The V.C. posters have largely persuaded me in their argument that the Chief is incorrect, but that doesn't make it less of a market-based issue. Part of the market consideration, however, is the non-cash compensation (the life tenure, easier hours, prestige, chance to make it to the Supremes etc.). Most people will balance those at some point, as they will with any job. The benefits won't outweigh a salary of, say, $30,000, just as for some people, a salary of $500,000 might not justify working 80 hours a week. Every person has a different cut-off on that sliding scale. The question, as others have pointed out, whether the particular combination of salary and benefits will attract a sufficient number of the most qualified candidates out there, from a wide enough variety of the profession, to fill the available positions.
1.3.2007 1:44am
NS:
"... drawn primarily from among the best lawyers in the practicing bar"

Huh? Am I reading this wrong or is Roberts implying that public sector lawyers, which includes government lawyers, aren't as good or as qualified as private sector lawyers?
1.3.2007 1:53am
r78:


Good God... The sheer horror of this image -- that your kids might have to earn scholarships, go to public universities with the proles, or, the ultimate horror: get student jobs -- is almost unbearable. I feel your pain.

Look, I am not asking for anyone's sympathy. I am simply relating my experience. Yes, I understand that 125K is a lot of money - I said so.

But, look, just run the numbers. My mortgage is 4,700 a month. (And, just for the record that is for a 2,300 sq ft. 3 bedroom house in San Francisco - without a garage) Combined tuition, room and board for my two daughters is almost that much - and guess what, neither one is in an Ivy. That is over 100K a year right there, before I even buy a cup of coffee. Yes I could insist that my daughers go to a public school and take out loans and I could move to Stockton where I could cut my mortgage by 2/3. But I will pass, thank you.

Again, I am not complaining - I know that I am very blessed. But I can't afford to be a judge now.

When the girls are out of school and I have the mortgage paid off - I'd love to do it and I hope the circumstances line up again so that I can be nominated.

And, if you will notice, I am not sitting her griping that judges (state or federal) should be making at least $500K a year. I am simply recognizing that I can't get by on the present salary without radically restructuring my life and walking away from financial commitments I have made to my kids.

So please spare me the sarcasm.
1.3.2007 2:13am
Jiffy:
r78: It may not help much, but current salary for a superior court judge in California is about $158, not $125.
1.3.2007 2:37am
Jeremy T:
Let's define four variables:
Prestige of being federal judge = PrestigeJ
Prestige of being lawyer = PrestigeLaw
Salary of federal judge = SalJ
Salary of law = SalLaw

I believe that, with a VERY few exceptions, this relation is true:
PrestigeJ + SalJ > PrestigeLaw + SalLaw

Granted, prestige won't buy groceries, but six figures will, and so long as judges are among the top wage earners in the country (though at the low end of that group), I don't think judicial pay is a constitutional crisis.

Two other quick points. First, John Roberts left a ton of money at his firm to become CJ, which suggests my prestige theory is at least reasonable.

Second, I'm not sure that we want our "best legal talent" on the bench. CJ Roberts has often used the baseball analogy of judges-as-umpires. Umpires certainly make less than players in every professional sport. But of course the analogy may not carry that far.

That being said, there are good reasons to have not-brilliant judges. I don't remember where, but I once read someone claiming that having a rather dull judge was a good thing, because a rather dull judge was more likely to follow the law than make something up. I think there's some truth to this. Legal brilliance is really just a form of creativity, and I don't want creativity in my judges. Creative judges are activist judges, and are to be avoided.

But creativity is a great skill for a lawyer to have. See, e.g., Motley Rice and the tobacco lawsuits. The folks at Motley Rice have made more money than a federal judge will in an entire career, but that doesn't mean they'd be better judges.

So I'm unconvinced that judicial pay is too low for two reasons. First, I think the prestige of being a judge makes up the gap. Second, the skill sets of top lawyers are different, and, frankly, more marketable, than the skill sets of (what I would consider to be) good, uncreative judges.
1.3.2007 3:34am
markm (mail):
This post by Orin tells of young lawyers leaving their $200,000 a year positions because they are overworked and tied to their office 24/7. Ever hear of a judge quitting because the hours were too long?
1.3.2007 5:58am
Public_Defender (mail):
There are good arguments for increasing the pay of federal judges, but most of the Chief Justice's arguments are bunk.

Pay should go up so that judges are protected against inflation (which would cause a very real pay cut over a decades-long service) and because increased pay for federal judges would allow for raises for the rest of public sector lawyers.

Public sector lawyer pay is loosely connected (sometimes it's officially connected). Federal judges make more than USA's, magistrates and law clerks. USA's make $1 more PD's, who make more than APD's and ASUA's. Federal APD's and ASU's make more than prosecutor's and PD's in state court. Federal judges make more than state judges. Etc., etc., etc.

When judicial pay goes up, it gives room for all other public secotr lawyers to get a raise.

The Chief Justice's turnover argument proves the opposite of what he intends. If the miniscule turnover of federal judges merits more pay, then judges need to get in line behind pretty much every prosecutor's and PD's office in the country for more money.

The Chief Justice also seems to confuse the "practicing bar" with attorneys from big law firms. Most state court judges have private practice experience. But many practiced in small and medium sized firms. By recruiting federal judges from state courts, the federal judiciary gets a much wider variety of private practice experience.

But the Chief Justice doesn't appear to want to cull the best lawyers from private practice. He simply wants more judges like himself. That's just arrogance.

My biggest pet peeve of his report is that he contrasted the "practicing bar" with "public sector" lawyers and judges. Does he really think that government lawyers aren't part of the "practicing bar"? That's either slopiness or snobbery on the CJ's part.


My mortgage is 4,700 a month. (And, just for the record that is for a 2,300 sq ft. 3 bedroom house in San Francisco - without a garage) . . . I could move to Stockton where I could cut my mortgage by 2/3. But I will pass, thank you.


1000 tiny violins. You choose to live in one of the most expensive places in the country to live. SF is beautiful. It's a fun city. But you value the SF lifestyle more than you value serving on the bench. Good for you. But every other employee in the federal courthouse in San Francisco manages to get by on less than federal judges make.

I understand that there are residency restrictions for judges that prevent them from moving too far from their districts. Maybe we need to look at changing them. If federal judges can't find a big enough house in SF, they can move across the Bay and take the BART.
1.3.2007 6:09am
A.C.:
r78 -- Invoking the kids is fashionable these days, but lots of people get their kids through college on incomes that would astound you. My parents became unemployed (and lost their health insurance, although they did end up buying some) while one of my siblings was in college, and he still graduated on time. I assume you have equity in your home and other assets, and there are many scholarship and loan options out there.

Very few people pay for college out of current income, and learning how other people do things might be good for your kids. Thinking that Mommy or Daddy will always be able to pay is not a good way to enter adulthood.
1.3.2007 9:08am
Elliot Reed:
A.C. - I have to agree with you. People who talk about a judge's salary not being enough to get the kids through college really seem to mean, "enough for me to pay the tuition and expenses at several elite private colleges without anyone having to take out any loans." A federal judge's salary isn't enough to do that, with tuitions as high as they are these days, but "my kid had to go to UCLA instead of USC" is not the kind of story that tugs at the heartstrings. As others have pointed out every other employee in the courthouse somehow manages to get by on less than the judges make.
1.3.2007 9:24am
Brant:
Is there a natural experiment?

District Court salaries are equal everywhere, but cost of living varies widely. So, as someone else pointed out, 162k is a lot more in the WDNY than it is in the SDNY. But both trial courts are reviewed by the same group of appellate judges, no? So, if salary is a significant motivator for potential fed. juges, and if increasing pay would lead to better judges, shouldn't we expect that the higher pay in the WDNY would lead to their rulings being overturned less often?

I have no idea what the actual data say, but it seems like a starting point of an interesting discussion.

The experiment is really only valid for trial judges, because circuit judges probably are not reviewed often enough to provide significant data. I assume, however, that pay-raise activists are mostly concerned about attracting talent to trial court.

I see a few problems with this experiment, but you don't post to the VC with the natural experiment you want, you post to the VC with the natural experiment you have.
1.3.2007 9:56am
J. F. Thomas (mail):
For a libertarian blog, I'm surprised someone hasn't suggested privatizing the judiciary. I bet Judge Judy makes a hell of a lot more than the Chief Justice, and she only handles small claims! Think of the possibilities.
1.3.2007 9:56am
Just Dropping By (mail):
Something else that Roberts seems to have overlooked is the possibility that an increasing percentage of judges are drawn from the public sector because of political reasons, not economic reasons, i.e., the ever increasing obsession of both national political parties that judicial nominees have a "paper trail" showing how they will vote, particularly on abortion. Most private practitioners don't generate much work product on "hot button" issues.
1.3.2007 10:09am
Newly minted JD:
It's interesting that no attention is paid to the very low salaries of prosecutors, (and public defenders). In Miami-Dade County, Florida, prosecutors begin in the high 30s and in neighboring Broward County the pay begins at $40,000. These are close to subsistence wages, given the meteoric rise in property values here in the past few years. The turnover rate is, of course, extremely high. Both offices ask that new hires promise to stay for at least three years or else they won't get a reference. Many talented people turn down these jobs because they just don't want to live in poverty.
1.3.2007 10:41am
Mahlon:
I don't think there is any doubt that relatively low salaries keep the best and brightest away from the bench. I actually think this is more the case at the state court level than the federal level. The new trial judges I see come from the public sector, such as a prosecutor's office, or the small firm setting, 2-6 lawyers. These folks may be decent lawyers (and often are) but they are not the intellectual cream of the crop. And let's remember that most appellate judges are drawn from the trial court ranks.

Let me be blunt. Most state court trial judges are not intellectually qualified to carry my briefcase. Perhaps a bbiiitt overstated, but true.

I good friend of mine was recently appointed to the bankruptcy bench. He had been a mid-level partner at a mid-sized local firm in a mid-sized midwest city. He had to take a serious pay cut to go onto the bench. Yes, in his case, he is an exceptional legal talent. But he is the exception. Most of the true legal talent does not seek the bench because of the relatively low pay.
1.3.2007 11:20am
J. F. Thomas (mail):
It's interesting that no attention is paid to the very low salaries of prosecutors, (and public defenders).

Heh, the true constitutional crisis is the appalling state of the public defense bar in some places, especially the south. Here in New Orleans, it has completely collapsed after Katrina. There are literally no public defenders in New Orleans (they all quit and there is no money to hire new ones since they are funded by traffic fines and there was no income from that stream for almost a year).

Of course Chief Justice Roberts probably doesn't care much whether or not poor people get an adequate defense.
1.3.2007 11:21am
Phil (mail):
It just does not appear to me that there is a politically viable raise that would actually increase the pool of talent in any significant way. Are there really many lawyers who would not want a federal judgeship at $165,200 who would at, say, $180,00 (which would be a huge increase by government standards)?
On the other hand, though almost irrelevant to the points raised by CJ Roberts, locality pay might be justifed as a matter of simple fairness. Perhaps for reasons of ceollegiality, one never hears any judge suggest that perhaps their fellow judges in Boise should make less.
The only time I ahve strongly supported a judicial raise was when I began clerking for a state supreem court justice the year after I graduated from law school and realized that I had clasmates who made more then the justice. A significant raise passed the legislature the following year.
(Just to head off any strong reactions, I have no dog in this fight and no strong views one way or the other.)
1.3.2007 12:07pm
Evan (mail) (www):
Judge Roberts is simply trying to be an effective bureaucrat. He's staking a position way far from realistic in hopes of compromising on a modest increase. It's the game all government administrators play.
1.3.2007 12:51pm
Matt L. (mail):
Something else that Roberts seems to have overlooked is the possibility that an increasing percentage of judges are drawn from the public sector because of political reasons, not economic reasons, i.e., the ever increasing obsession of both national political parties that judicial nominees have a "paper trail" showing how they will vote, particularly on abortion. Most private practitioners don't generate much work product on "hot button" issues.

Hear hear. This issue dwarfs the salary issue. The judiciary isn't losing big-firm partners (primarily) because they turn down appointments; it's losing big-firm partners because the only people with a shot at a judicial appointment are DOJ employees. That's a real threat to the independence and intellectual diversity of the judiciary; the salaries stuff is nonsense.
1.3.2007 1:39pm
Bryan DB:
A.C., Your counterexample is inappropriate to r78's situation. While your parents became unemployed (presumably not by choice), r78 would have to willingly uproot his family's situation when both of his kids are in college. How, exactly, do you suppose that will go over? Yes, it's clear that r78 makes tons of money and wants the good life for his family, but just because he "could" do something (take the lower-paying job or make do with less) does not mean that he "should" do it (make that change *now*, when he has a choice in the matter).
1.3.2007 2:26pm
Guest12345:
I'm just curious as to how someone's children can get to be college age, will be attending a more than average cost school and yet not have the money already sitting in the bank? Particularily someone who can turn down a $125K/yr job because it's not enough money.

I'd also be interested in knowing how talented some of these too-expensive attorneys would be if we had anonymous judges? In that they had zero access to the judge outside the courtroom and formal written filings and they had no idea who the judge was and the judge had no idea who they were.

Not to mention it would be splendid if the SCOTUS increased their size from 9 to about 27 and then a random subset of 9 opinions was used to determine the outcomes of the cases.
1.3.2007 3:01pm
Guest12345:
Also, I'd like to point out that Roberts didn't leave what he was doing before in order to become CJ, he left to become an Associate Justice. That's less money and less prestige.
1.3.2007 3:03pm
JBL:
It might be interesting to borrow a classic thought experiment from a slightly different context. One potential way to think about the financial value of a judicial appointment is to (assume the bribery implications wouldn't be a problem) and ask

"How much would you have to pay a federal judge to give up their post?"

Would a federal judge be willing to resign for a lump sum payment of $500,000? One million? Ten million? If (practical difficulties aside) it would take more than two or three million, that's a potentially significant argument that an annualized value of $165,000 is not too low.
1.3.2007 3:42pm
r78:

I'm just curious as to how someone's children can get to be college age, will be attending a more than average cost school and yet not have the money already sitting in the bank?

That's easy, poor planning on my part.

And gosh darn it, shouldn't we also have people on the bench like me who used to spend money like a drunken fool? Who speaks for us? :)
1.3.2007 4:33pm
Hans Gruber (www):
"Would a federal judge be willing to resign for a lump sum payment of $500,000? One million? Ten million? If (practical difficulties aside) it would take more than two or three million, that's a potentially significant argument that an annualized value of $165,000 is not too low."

Not really. Because you're talking about current judges, who obviously valued the career enough to choose it over other, more lucrative offers. The argument for more pay is that there are many very highly qualified lawyers who refuse to take the pay cut. Thus, a paucity of judges leaving the bench doesn't do much to undermine the pro-increase argument. Though, of course, in terms of prestige and security, the bench beats out private practice, so parity would not be justified. But is anybody talking about parity?
1.3.2007 6:31pm
Elliot123 (mail):
Roberts is a smart guy, but his arguments are weak. I suspect he is smart enough to know this. So, perhaps he is simply throwing a bone to the judges to gain their goodwill. "Gosh Darn, I tried, guys, but those skinflints in Congress just won't cut loose with the cash. Maybe next year."
1.3.2007 10:13pm
Public_Defender (mail):
Roberts is a smart guy, but his arguments are weak. I suspect he is smart enough to know this. So, perhaps he is simply throwing a bone to the judges to gain their goodwill. "Gosh Darn, I tried, guys, but those skinflints in Congress just won't cut loose with the cash. Maybe next year."

This is a good point--just who was Roberts trying to persuade? The public? "Judges can't live on $160+K a year" is not going to persuade someone raising a family on $35K a year. Congress? Touting a miniscule turnover rate as a crisis is not at all persuasive.

As some people have pointed out (including me), pay for many government lawyyer positions is too low. Federal judges are paid the most in the courthouse, so their salary imposes an effective cap on the pay of the rest of us. So when judges pay goes up, it eventually trickles down.

On this point, Roberts is almost dishonest. He talks about how small the cost would be to give federal judges a pay raise, when the real cost would include the trickle-down.

But in fairness to the judges, Congress should not let inflation eat away at judicial pay. While some may have to make "sacrifices" to be a judge, federal judges should not have to cut things out of their family budgets each year to replace what inflation has taken away. Modest annual raises should become routine.
1.4.2007 5:23am
ohwilleke:
The other thing to keep in mind is a judge's typical career path. The federal government doesn't have the career judiciary that Europeans do. Most have had 25-30 years of lucrative practice in senior positions before being appointed to the bench. Leaving private practice to go on the bench is largely a form of early retirement in favor of some of the best paid public service around.

Most federal judges have homes they own free and clear, kids out of college, and ample retirement savings, and get even more generous retirement packages while in office, on top of their pay. Most of the judges on the U.S. Supreme Court are entitled to draw social security without an early withdrawal penalty, as are many judges on the U.S. Court of Appeals.

Also, judicial services is, to be honest, almost monastic. It is not amenable to conspicuous consumption.

When they do really retire, they can go on to well paid part time work as a senior judge.
1.4.2007 7:20pm