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Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:

In his recent testimony before the Senate Judiciary Committee, Justice Anthony Kennedy forcefully argued for a pay increase for judges and against allowing TV cameras in the Supreme Court.

Perhaps needless to say, I disagree with Justice Kennedy on both issues. For my critique of arguments for a judicial pay increase, see here, here, and here. In addition to the various arguments for a pay increase that I have criticized in previous posts, Justice Kennedy adds the claim that "judges are being lured off the bench into academia" because law professors supposedly have higher salaries than judges do. Unfortunately for Kennedy, there is little if any proof that significant numbers of federal judges are in fact leaving the bench to become lawprofs. Indeed, it is far more common for professors to leave academia to become judges than vice versa. I can think of numerous prominent law professors who have left academia for the judiciary. The fact (noted in the article) that one district judge recently left the bench to become Dean of Duke Law School (one of the top 15-20 schools in the country) is hardly proof of a trend.

Moreover, as Paul Caron of Taxprof Blog (a supporter of judicial pay increases) points out, the average law professor at "full professor" rank makes about $136,000/year, almost $30,000 less than the salary of a federal district judge. Only 3 of 88 law schools responding to a recenty survey cited in Caron's post reported average full professor salaries higher than $165,000/year.

As for TV coverage of the Court, I remain unpersuaded by Kennedy's arguments against it, though I won't analyze the issue in detail here. Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments. According to the Legal Times story linked above:

If Congress did pass his bill [to require the Court to permit TV coverage of its proceedings], Specter said in a conciliatory tone, "it would be our opinion," which could then be overtaken by "your opinion." Specter did not explain the comment.

Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars that Congress does in fact have the constitutional authority to override the Supreme Court's preferences on this issue.

UPDATE: For analysis of yet another flaw in the case for a judicial pay increase, see this recent post by Ben Winograd on the Wall Street Journal Blog.

Related Posts (on one page):

  1. Justice Kennedy Argues for a Judicial Pay Increase and Against Allowing TV Cameras in the Supreme Court:
  2. Can Congress Force the Supreme Court to Televise its Oral Arguments?
  3. Can Congress Force the Supreme Court to Televise Proceedings?:
Roger Schlafly (www):
Specter is a judicial supremacist, and frequently argues that the Supreme Court has the last say on various issues.
2.15.2007 7:42pm
Highlander (mail):
And of course, Specter was the originator of the 'single bullet theory.'
Need one understand more?
2.15.2007 8:42pm
Just an Observer:
I, too, was puzzled by Sen. Specter's implication that the court would have the last word. Perhaps he was referring to the narrow exception written into his draft legislation, S 344:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.


Notably, Justice Kennedy did not take issue with Congress' right to enact such legislation. (Although if he does have constitutional qualms, maybe he would think it unseemly to debate that issue in the forum of the Senate hearing.) Rather, his approach was to implore, with some passion, the senators not to take the action.

At any rate, Kennedy did not seem to get much sympathy for his objections. I see that Sens. Cornyn, Schumer, Durbin, Feingold and Grassley are cosponsors.

Would televised oral arguments look better or worse than artist's drawings such as this? I am not sure the court is ready for YouTube, but perhaps it should get ready. I think the justices' behavior would be altered by the presence of cameras, but only marginally.

I recall when Congress admitted cameras into the chambers for the first time, and members' behavior was certainly altered. Politicians adapted their natural camera-hogging instincts to the medium on the floor. But on balance the public became better informed despite the updated theatrics.

Most members of Congress adhered to the advice of Ronald Reagan, drawing on his Hollywood experience: "Learn your lines. Try not to bump into the furniture. And during the kissing scenes, keep your mouth closed."

Ultimately, my own opinion of the question of televising Supreme Court arguments is colored by self interest. I want to watch. Most readers here probably do, too.
2.15.2007 8:45pm
Steve Lubet (mail):
If Justice Kennedy thought that Congress lacks the constitutional authority to required televising oral arguments, then he probably wouldn't waste his time imploring the senate not to pass a bill.
2.15.2007 8:52pm
A. Zarkov (mail):
"Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments."

Does Specter also think the executive branch is not required to obey a congressional statute? What makes SCOTUS above the law in the way it conducts its business?
2.15.2007 9:08pm
Anonymous Hoosier:
Ilya:

Be careful citing/re-citing that SALT study in Paul's post. As I noted in the comments over there, although the statement regarding the numbers of schools is true, the survey omits almost all of the top law schools by which most federal judges looking to leave the bench would be recruited. (And, for that matter, many of the law schools from which judicial nominees are likely to come). Among the schools not responding are: Harvard, Yale, Stanford, Michigan, Notre Dame, Vanderbilt, Georgetown, and NYU -- but the list of absent schools is much longer and deeper still.
2.15.2007 9:09pm
Daniel Chapman (mail):
Just an Observer: Thanks for linking to a larger version of that picture. I looked everywhere when I first saw it.
2.15.2007 9:14pm
Anonymous Hoosier:
It seems to me that the disgraceful sight of supreme court justices grandstanding in favor of lifetime pay raises (that would elevate their pay far above that of virtually any other public servant, for doing a lot less) is a good reason to believe in Justice Kennedy's otherwise-unlikely concern about justices becoming addled with their celebrity...
2.15.2007 9:21pm
msmith (mail):
Leave it to the Wall St. Journal, sparing no effort to rationalize CEO pay, to come up with a poorly reasoned argument as to why federal judges don't have much of a case. Anyway, just picked at random. So about 1/3 of a district judge and 1/4th of the Chief Justice? Yep, that makes sense. To the Wall St. Journal, not known for being particularly lawyer-friendly.

Guide to Judicial Clerkships
The median salary for judicial clerks in the 2003 graduating class from Indiana University School of Law -- Indianapolis was $51050. Many law firms will give ...
indylaw.indiana.edu/career/judicialclerkship.htm - 40k - Cached - Similar pages

As far as televising the Court goes, Canada has been doing it for a long time with their Supreme Court. A CSPAN-type channel televises one or two oral arguments in full every week. Very rarely there is a clip of the Court on the news. Nothing seems to have risen and fallen on the decision to televise those proceedings, the heavens have not fallen.

My guess is public interest in the US would be about the same it appears to be in Canada, approximately zero, in following a couple hours of appellate argument.
2.15.2007 9:33pm
Just an Observer:
Daniel Chapman,

I found the drawing by looking at Google's image search page today. I have no idea how long the link will be archived, or who hosts it.
2.15.2007 9:34pm
msmith (mail):
Typical Canadian CPAC Coverage of the Supreme Court
http://www.cpac.ca/

Looks like some kind of commercial case, and they usually broadcast a criminal/constitutional appeal that I suspect is maybe more popular than insurance litigation. You be the judge! :) Not exactly primetime spot, even for CPAC.

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You be the judge! Watch Supreme Court cases in their entirety and reach your own verdict. Jurisprudence brings Canada's highest court into your living room.
2.15.2007 9:48pm
Steve:
It's entirely possible that Specter simply believes this is not an issue worth provoking an inter-branch confrontation over, which it probably isn't.

Even if Prof. Somin is completely correct, a "consensus of constitutional law scholars" does not possess the power to referee a dispute between two branches of government. If Congress passes a requirement, and the Supreme Court ignores it, that's pretty much where it ends in the real world. The Capitol Police will not be dispatched to clap Chief Justice Roberts in irons.
2.15.2007 10:06pm
Le Messurier (mail):
I can think of no better reason of why not to televise Supreme Court proceedings than the OJ Simpson trial. What a circus that was! What a travesty! What a joke! There was nothing in that trial that wouldn't have been better served by having the "news" of the trial filtered by normal news reporting. A high profile case in the Supreme Court needs the filtering even more so as the consequences of the cases are so much greater. The public has no real need to know instantaneously what a preening lawyer or justice is saying. And preening is what you would get. I should think that the pressures that presenting a case before the Supreme Court bring upon a lawyer would be enough for him to bear rather than adding the pressure of whether his hair was combed or his makeup was done correctly. Sorry, but IMO attorneys have big enough egos as it is, and we don't have a national need for them to be exhibited from coast to coast.
2.15.2007 10:25pm
Mark Field (mail):
Does anyone have a source for judicial salaries of, say, 1960? I wonder how the salaries have held up under inflation; it's possible, I guess, that judges have seen a relative decline in salary and are sensitive to that. That doesn't, by itself, justify an increase, of course.
2.15.2007 10:26pm
Elliot123 (mail):
Is there any requirement that the SC hold oral arguments? I know there are opinions about the value of oral arguments, but is there any requirement? If so, what is it?
2.15.2007 10:41pm
davidbernstein (mail):
Hoosier, for better or for worse, the vast majority of federal judges wouldn't have a snowball's chance of getting hired at Harvard and other top-ranked schools. Maybe that's to the schools' discredit, but that's the way it is.
2.15.2007 11:23pm
Lev:

Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars


Must be that Scottish law thing.
2.15.2007 11:36pm
Ilya Somin:
the survey omits almost all of the top law schools by which most federal judges looking to leave the bench would be recruited.

Actually, it does include quite a few top schools, such as Texas and Duke. Moreover, very few federal judges (probably no more than 10-12 other than Supreme Court justices) have any real chance of getting hired as professors at law schools ranked in the Top 20-25. And many of those judges who do have such a chance (Ginsburg, Calabresi, Posner, etc.) left academia to become judges, so it's unlikely they'd go back, pay differences nothwithstanding).
2.16.2007 12:40am
e:
A side question: how many full-time/active federal judges supplement their incomes by also holding faculty positions? We only have two (one district, one circuit), but it is a small school.
2.16.2007 1:18am
Christopher Cooke (mail):
Federal judges are compensated non-monetarily for their work, so I am not sure they are underpaid, or that comparisons to private sector jobs that do not enjoy the same power and prestige make sense. I have no qualms with Kennedy trying to make the case to get judges more money, as I think it fair for him to have a forum to make this pitch, I am just not sure how I would vote for this if I were a Senator.

I agree with cameras in the Supreme Court, but perhaps the justices can be coaxed into a short pilot project to see if it is as bad as they fear. I assume the real reason for the opposition is a concern by the justices that they will lose their anonymity if the arguments are televised, as members of the public would be more likely to recognize them when they go out in public.
2.16.2007 1:26am
jdnyu:
The fact that federal judges aren't woefully underpaid relative to law professors doesn't mean that they don't deserve a pay raise. (Hopefully my triple negative is comprehensible.) It may mean that some common arguments for said pay raise are incorrect, but it doesn't dispose of the issue. At the very least, if it does dispose of the issue for you, you should very clearly state the other assumptions that you are reasoning under.
2.16.2007 2:50am
Just a Nut (mail):
Judicial pay raises are trapped in by their linkage to Congressional pay raises, and hence to political factors unrelated to the actual salary. Unlike the congress, there are no lobbyists, campaign contributions, generous allowances and privileges and the like for Supreme Court justices.

It may be useful to allow all of those 'privileges' to even the scale, but such medicine may kill the patient.

The alternative is to evaluate Judicial salaries on their own without relationship to the congressional salaries. To this end, a formula taking onto account a basket of factors such as inflation, local housing and cost of living, law firm and law professor salaries could be adopted. All of these are proper factors, just not dispositive ones. Having a formula would remove a persistent cause that requires politicking by a branch that is not supposed to be engaged in significant politicking (not that Gore v. Bush is ancient memory).

Televising of the Supreme Court free of Constitutional wrangles, a judicial salary settlement/raise should be part of the bill requiring televising the proceedings. It is unlikely there would be much of a dispute to render the bill a mere 'opinion.'
2.16.2007 3:11am
Ilya Somin:
The fact that federal judges aren't woefully underpaid relative to law professors doesn't mean that they don't deserve a pay raise....At the very least, if it does dispose of the issue for you, you should very clearly state the other assumptions that you are reasoning under.

I did so at some length in the 3 earlier posts linked at the start of this one.
2.16.2007 4:39am
Brian G (mail) (www):
All Kennedy has to do is quit. Every top law firm in the country would be offering him millions in a nanosecond. Instead, he chooses the power that comes from being on the Court. That is what is costing him millions. I don't feel sorry for him or the others on the pay thing. Maybe if it stays low, future justices will stay on only a few years instead of until they are old and senile.

As for the TV thing, I agree with Kennedy. I can easily imagine that, in time, the advocates will start to play to the cameras instead of the court. And, as soon as one of the judges lets an advocate have it for grandstanding (especially if it is Scalia, Roberts, Thomas, or Alito) the press will destroy them. Soon enough, the attorneys, not the judges, will run the Supreme Court, and the justices will let it happen because they are afriad of bad press. Maybe not Scalia, but the others for sure.
2.16.2007 5:19am
Brian G (mail) (www):
To respond to the commenter above, unlike Canada, our Supreme Court seems to have the last word on everything. Under the Canadian parlimentary system, Parliament can toss any Supreme Court decision in the toilet at will.
2.16.2007 5:22am
Brett Bellmore:
I don't think it's a question so much of what the judges <i>deserve</i> as it is the collision between inflation and that "shall not be diminished" clause. I believe that, at a minimum, the judiciary are constitutionally entitled to cost of living adjustments.
2.16.2007 6:23am
Duffy Pratt (mail):
So, in a deflationary period, the "shall not be diminished" clause would not forbid lowering judicial salaries? And how should we interpret the 35 year old requirement for the President in light of increasing life expectancies?

Duffy
2.16.2007 6:46am
AppSocRes (mail):
A simple market analysis should be able to determine whether federal judges are underpaid: What is the annual proportion of persons who are offered a federal judgeship and who decline the position? Has this proportion gone up since 1969? If it hasn't gone up, then compensation is either adequate or more than adequate: I suspect the latter.
2.16.2007 8:11am
anonVCfan:
Academics make less than judges in salary, but they have more opportunities to supplement their income, no?
2.16.2007 9:41am
TyrantLimaBean:
Let me preface this by admitting I've not had time to read all the prior discussion on the subject, but here goes anyway:

1st year associates at good law firms make $135,000 - $160,000.

We think judges deserve about the same as 1st years? Weird.

So, one could stay on as a partner at Hogan and own 5 homes around the world, or become a judge and afford a small condo?
2.16.2007 9:58am
DJR:
Ilya,

I assume your toungue was firmly in cheek when you cited the "broad consensus" of conlaw scholars, but looking over the posts on this subject, none of you has answered this question, though it has been asked at least three times:

You (and Mary Lederman in comments) have asserted that Congress's power to enact a cameras in the courtroom law comes from the regulations clause of Article III and the necessary &proper clause.

But the regulations clause of Art. III is limited to the Court's appellate jurisdiction. Why would the framers give a broad regulatory power, but leave the Court afloat in original jurisdiction cases? Isn't it more likely that the regulations have to do with what cases get to the Court and not with how the Court decides cases?

As for the necessary &proper clause - how could cameras in the courtroom be necessary &proper to carry into execution the judicial power if the justices themselves do not believe it is or want it?
2.16.2007 10:02am
Anon1234:

Moreover, very few federal judges (probably no more than 10-12 other than Supreme Court justices) have any real chance of getting hired as professors at law schools ranked in the Top 20-25.


Ilya, doesn't that illustrate Justice Kennedy's point that the federal judiciary isn't getting the best legal minds?
2.16.2007 10:07am
Anderson (mail):
All Kennedy has to do is quit. Every top law firm in the country would be offering him millions in a nanosecond. Instead, he chooses the power that comes from being on the Court.

I am not sure that "desire for power" is one of the criteria that we should be using for Supreme Court justices. Actually, I thought so-called conservatives were against that kind of incentive for federal judges.
2.16.2007 10:09am
TyrantLimaBean:
I've now read the prior posts (and, more importantly, had some coffee,) and I have a hard time believing the nonpecuniary benefits of being a judge justify the vast disparity in pay between judges and private sector lawyers.

I think the Luttig example is telling. The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.
2.16.2007 10:25am
Dick Schweitzer (mail):
When one roams around in the atmosphere of bloviation that is our current legislative process, one will encounter: "You can't do just anything you decide, we can decide too!" and "We can determine how you shall conduct your procedings!" Simply substitute "I" for "We" and understand that none of this is substantive in source though it may wind up as such in its effects.
2.16.2007 10:31am
John M. Perkins (mail):
Back in the day, the saying was:

A students become professors,
B students become judges,
C students can buy and sell the profs and judges.

Old news.
2.16.2007 10:36am
Snide Remark:
The last time there was a "broad cross-ideological consensus among constitutional law scholars," I seem to recall a 9-0 defeat of the con-law scholars. See FAIR v. Rumsfeld.
2.16.2007 10:43am
Adeez (mail):
"1st year associates at good law firms make $135,000 - $160,000.We think judges deserve about the same as 1st years? Weird. So, one could stay on as a partner at Hogan and own 5 homes around the world, or become a judge and afford a small condo?"

I respectfully disagree with the notion that public servants should be compared to private sector employees. The many devotees of the free market on this site can exlain the sanctity of the market better than I. Suffice it to say that associates and partners get paid so astronomically purely due to market forces. The more appropriate perspective, I humbly believe, is: why are 1st year associates making as much as federal judges? But I still think it's a false comparison.

Civil service is out of the free market realm. These judges are given extraordinary powers in our society and have all the prestige and job security in the world. I believe that that more than compensates for the less than stellar compensation.
2.16.2007 10:54am
DJR:
Adeez: If we favor having the brightest and most qualified judges, wouldn't the free market approach favor paying what the market pays for the brightest lawyers?
2.16.2007 11:33am
Thorley Winston (mail) (www):
Specter seems to have overlooked the broad cross-ideological consensus among constitutional law scholars that Congress does in fact have the constitutional authority to override the Supreme Court's preferences on this issue.


No doubt because the "broad cross-ideological consensus" consists of a whopping four people.
2.16.2007 11:39am
ed o:
well, find out when a judicial opening occurs how many lawyers line up for the job-they certainly do for magistrate positions and those are not life tenure and they get paid less. once they get the life tenured job, they tend to leave in a pine box, not for a law firm position. No one, lawyer or otherwise, should shed any tears for folks making nearly 200k a year with near absolute job protection and large pensions/not to mention plenty of vacation time. by the way, where was Kennedy banking millions at prior to the Court? what about Souter? Breyer? any of them?
2.16.2007 11:49am
Elliot Reed:
The more appropriate perspective, I humbly believe, is: why are 1st year associates making as much as federal judges? But I still think it's a false comparison.

Civil service is out of the free market realm. These judges are given extraordinary powers in our society and have all the prestige and job security in the world. I believe that that more than compensates for the less than stellar compensation.
Amen. When people are being paid $160,000 for entry-level positions as transaction costs, that's a sign that something is deeply screwed up about the system. Incidentally, on judicial compensation, it's worth pointing out that judges don't have to engage in fraudulent billing to meet an unrealistic billable-hours requirement and, although they work hard, have a very high degree of control over where and when they work, which big-firm lawyers don't have.
2.16.2007 11:53am
Houston Lawyer:
Has anyone ever tried to quantify the value of lifetime tenure? I'd be willing to sacrifice quite a bit of pay for that kind of guaranty.

Some judges are underpaid based on their talents and others, I am sure, are overpaid. We can reduce the number that are underpaid but not the number who are overpaid.

Could we offer them more money if, in exchange, they agreed to quit after a set number of years?
2.16.2007 11:55am
Cornellian (mail):
"Strangely, Senator Arlen Specter, the ranking Republican member of the committee, seems to think that the Supreme Court would not be required to obey a congressional statute requiring them to allow TV coverage of oral arguments."

Does Specter also think the executive branch is not required to obey a congressional statute? What makes SCOTUS above the law in the way it conducts its business


Actually it's quite an interesting question whether Congress can constitutionally enact a law requiring TV cameras in the Oval Office (and let's say they have the votes to override the inevitable veto).
2.16.2007 11:56am
Hattio (mail):
TyrantLimaBean says;
The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.


You are joking right? The vast majority of Americans manage to put their children through school very well on FAR, FAR less than $135,000 a year. I'm sorry if you are making 4 times the average for a family of four, and pleading poverty, the reaction by the American public is not going to be in your favor. Now, that doesn't get rid of the argument that it means the bench can no longer attract the best and brightest, but pleading poverty for Federal Judges gets you nowhere with me.
2.16.2007 11:58am
Cornellian (mail):
I think the Luttig example is telling. The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.

I totally agree. While judicial salaries will never be competitive with major law firms (nor should they be), judicial salaries are at the level where being a judge is inconsistent with providing a top notch education for your children (well maybe one kid, but if you have 3 or 4, forget it). If you want minimally qualified judges, in the sense of being admitted to the bar for the requisite number of years, you'll always be able to get that. At the other extreme, superstars like Roberts are probably not motivated all that much by money, though you have to pay them enough. But if you want highly qualified (but sub-superstar) candidates instead of minimally qualified candidates, then I think you either raise judicial salaries, or maybe have a Chinese style "1 kid only" policy for members of the bench.

[and obviously I'm kidding about the latter].
2.16.2007 12:01pm
Adeez (mail):
"Adeez: If we favor having the brightest and most qualified judges, wouldn't the free market approach favor paying what the market pays for the brightest lawyers?"

I don't know; perhaps. But I'm afraid that's impossible. That is, I don't believe one can implement a "free market approach" to a public-sector industry. If so, that'd mean instead of congress passing a law allowing, say, a 15% raise, we'd have to make the judiciary a for-profit industry where supply-and-demand concerns dominate. How is that possible?
2.16.2007 12:03pm
Cornellian (mail):
Looks like some kind of commercial case, and they usually broadcast a criminal/constitutional appeal that I suspect is maybe more popular than insurance litigation. You be the judge! :) Not exactly primetime spot, even for CPAC.

Hey, that just gave me a brilliant idea to kick start tax reform. Supreme Court proceedings will be required to be televised, and the bill will also require all members of Congress to watch all tax related appeals (we'll quiz them on it afterwards to make sure they're paying attention). Now that will be an incentive for them to simplify the tax code.
2.16.2007 12:08pm
Brett Bellmore:

So, in a deflationary period, the "shall not be diminished" clause would not forbid lowering judicial salaries?


I think that would be a reasonable position, yes, so long as the nominal salary was not lowered by more than the deflation.

And how should we interpret the 35 year old requirement for the President in light of increasing life expectancies?


It's a number, there's nothing to interpret.
2.16.2007 12:13pm
Elliot Reed:
While judicial salaries will never be competitive with major law firms (nor should they be), judicial salaries are at the level where being a judge is inconsistent with providing a top notch education for your children (well maybe one kid, but if you have 3 or 4, forget it).
Godforbid judges' kids should have to take out loans the way the plebians do! Seriously, the idea that being able to pay 4 kids' way through an expensive private college is some kind of baseline for a minimally adequate salary is absurd. I'm open to arguments that more money would induce better people to serve, but pleading poverty leaves me unmoved.
2.16.2007 12:19pm
Cornellian (mail):
Godforbid judges' kids should have to take out loans the way the plebians do! Seriously, the idea that being able to pay 4 kids' way through an expensive private college is some kind of baseline for a minimally adequate salary is absurd.

Sorry, but unlike most people, highly qualified candidates for the bench are capable of earning enough money to send all their kids to top notch colleges. I don't think one can just ignore that fact and set judicial salaries on the assumption that they don't have that option. If I had kids I'd want them to have the best education possible and not to be sneered at for taking the cost of that into consideration when deciding on my career options.
2.16.2007 12:54pm
ed o:
sneering? again, they make far more than most americans and have absolute job security. if they want to send their kids to private institutions at top dollar, God bless but don't expect us to pay for it on top of the constitutional perks. by the way, is the statement by Kennedy a confession to the bench being filled with mediocrities?
2.16.2007 1:19pm
Elliot Reed:
Cornellian - agreed, I don't think we can ignore potential judges' private-sector earning power when setting the salary. If someone wants to take another job that pays more, there's nothing wrong with that (unless you believe there are moral problems with greed) and it's something we have to consider when setting the salary. But if someone adopts the attitude of entitlement expressed in the passage I was criticizing, or complains that merely being in the 95th income percentile isn't enough to live on, then I will sneer and my fellow Americans will join me.
2.16.2007 1:47pm
Hattio (mail):
Cornellian,
I'm not sneering at the notion of sending your children to a top college. I'm sneering at the notion that it's impossible to do on a salary of $165,000. And frankly, I don't think you need to take out loans to send 1 or 2 kids to a top college at a salary that high. I understand what you're saying about having 3 or 4 kids, but how many people have that many children these days? But assuming for a second, you do need a salary that high, I will second Ed's point. Why should we necessarily pay for that? Let them go to the big high law firm if they want. There are a lot of benefits to being a judge; respect, the ability to leave and get a high-paying job if you want, the ability to set your own hours (and on the S.Ct. the ability to set your own workload), the ability to take side work as a law prof.
I think what many are really complaining about is that it's hard to get highly qualified "young" candidates who will be on the bench forever. So What? That might actually be a good thing.
Finally, getting more candidates who have worked "in the trenches" so to speak; ie., not big firm law, might be a good thing.
2.16.2007 2:15pm
Hattio (mail):
And as an aside,how many families do you know that have 3 or 4 kids, who all get good enough grades to go to a top college?
2.16.2007 2:27pm
NotALegalEagle:
Cornellian,

I'm curious. Someone has had ten to eighteen years of making $150,000+ yet they are not prepared to send their children to a top notch school. How can that person possibly be suitable for a position on the federal bench. Such a substantial lack of foresight, such a lack of judgement, and possibly lack of intelligence, should be a major red flag.

To answer your other question, we don't want good lawyers on the bench, we want good judges. The qualifications are not the same.
2.16.2007 2:42pm
AppSocRes (mail):
Actually, we've been conducting an experiment on labor market clearing of potential judges for the last thirty years or so. Inflation has steadily decreased judges real wages, but there is still an apparent glut in the supply of potential judges. Let's just keep going this way until we really do start to get qualified candidates declining the bench in significant numbers.
2.16.2007 2:58pm
Ilya Somin:
But the regulations clause of Art. III is limited to the Court's appellate jurisdiction. Why would the framers give a broad regulatory power, but leave the Court afloat in original jurisdiction cases? Isn't it more likely that the regulations have to do with what cases get to the Court and not with how the Court decides cases?

No, the power to regulate what cases get to the Court is given to Congress by the phrase, in the same Clause, that gives it the power to make "exceptions" to the Court's appellate jurisdiction. Moreover, the regulations Clause could address both jurisdiction AND procedural issues.
2.16.2007 4:44pm
Ilya Somin:
Moreover, very few federal judges (probably no more than 10-12 other than Supreme Court justices) have any real chance of getting hired as professors at law schools ranked in the Top 20-25.

Ilya, doesn't that illustrate Justice Kennedy's point that the federal judiciary isn't getting the best legal minds?


No, "best legal minds" is not the same thing as "best legal scholars." Most judges come from practitioner backgrounds, and so have done little or no scholarship that would qualify them for an academic job. But that doesn't mean they aren't top quality lawyers.
2.16.2007 4:46pm
Ilya Somin:
If we favor having the brightest and most qualified judges, wouldn't the free market approach favor paying what the market pays for the brightest lawyers?

As I have argued in my earlier posts on this subject, federal judges do in fact get total compensation similar to what the free market pays the best private sector lawyers. Although they get less money, they have more power, prestige, pension rights and job security, work fewer hours, and have more interesting work. That's why VERY FEW judges leave the bench for the private sector, while many outstanding private sector lawyers would love to become federal judges, despite the lower (monetary) compensation.
2.16.2007 4:49pm
Just an Observer:
I think the Luttig example is telling. The nonpecuniary benefit of being called "judge" does not outweigh the ability to pay for your childrens' college tuition.

Actually, since Judge Luttig has had such a high profile, he is a good example of someone for whom career factors other than money can be in play. Doubtless the compensation at Boeing was attractive, but so was the prospect of elevation to the Supreme Court.

However, despite the judge's excellent qualifications, he was passed over twice by President Bush. Soon after, a case Luttig was handling (Padilla) led him to issue an extraordinary rebuke of the executive's legal tactics -- in a big case that mattered seriously to Bush.

Surely Luttig knew then that his judicial career had maxed out, at least during this administration. So it is not surprising that he opted to earn the big bucks. But does anyone think he would have turned down a seat on the highest court?
2.16.2007 5:23pm
Stating the Obvious:
So it seems a SCOTUS justice feels SCOTUS justices should be paid more and observed (e.g., televised) less.

If this isn't a straight-forward application of public choice, I don't know what is...
2.17.2007 8:42pm