Well, Justice Anthony Kennedy is, for one. As he testified just last month before the Senate Judiciary Committee, "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before." The fact is that if the market is working to drive associate salaries higher and higher, the lack of a market is now ensuring that a first-year associate at a law firm who clerked on the court will earn more next year than Justice Antonin Scalia ($203,000), Special Prosecutor Patrick Fitzgerald ($140,300), or a well-paid public defender ($75,000). And whether or not those salary disparities make you weep in sympathy, it's hard to dispute the justices' claim that the opportunity cost of staying on the bench has become almost impossible to ignore.
Well, Justice Kennedy, here's an option for you: resign! I'm sure you can make a lot more than some young associate working for a firm specializing in Supreme Court litigation, or, for that matter, as an arbitrator. Indeed, I'd speculate that you could easily make 3 or 4 million dollars a year! What, you don't want to give up the power and prestige that comes with being a Supreme Court Justice? Than maybe there is NOTHING wrong with current salaries, at least at the Supreme Court level. Indeed, I'd guess that none of the the Justices would resign even if they had to take, say, a (n unconstitutional) 25% percent pay cut.
In fact, I'm not so sure it wouldn't be healthy if we had more rotation between the federal courts and private practice. Sure, the judges have life tenure, but does that necessarily mean we want all federal judges to necessarily consider it a job for life? Michael Luttig (who recently resigned to take a high-paying private sector job) was appointed to the Fourth Circuit in his late 30s. In an ideal world, should a Bush I appointee still be ruling on cases in 2040? On the other hand, we don't want judges ruling on cases with an eye toward pleasing future private sector employers. But the idea that an occasional 50-something federal judge like Luttig, having already served on the bench for a decade and a half, decides that there's something else he'd rather do with the rest of his life, doesn't especially disturb me. (In fact, I know a relatively young man who was approached about a federal judgeship, but declined the offer because he thought it meant he'd be morally obligated to stay in that job for decades, a commitment he didn't want to make. Would it really be so terrible if young, bright, ambitious, attorneys saw federal judging as a thing to do for a decade or two?)
UPDATE: Given that it's not a market-based salary, there's really no way of knowing whether federal judges are underpaid or overpaid based on their talents. My guess is that judges in expensive metropolitan areas are underpaid given the cost of living, and judges in more rural areas are in some cases overpaid, given the other perks of the job, including a very generous pension system. (This dynamic tends to be true of federal jobs more generally, despite some feeble attempts to adjust salaries to cost of living.) And of course, some federal judges are significantly more talented than others, raising the potential overpaid/underpaid gap in any given scenario. But it does strike me as odd for someone who has already accepted the job, and has no thoughts of resigning, to complain that he's grossly underpaid. Underpaid relative to one's value in the open market, sure; but underpaid relative to one's own calculus of the benefits of the non-pecuniary benefits of the job? Unlikely. Given that Justice Kennedy likely could easily command a $2 million salary, probably without working very hard, it seems clear that he values the non-salary benefits of being a Justice at well more than $1.8 million. I understand the dynamic quite well; until a few years ago, my salary was significantly less than first year associates in D.C. got paid, but I wouldn't have traded my job for theirs. To therefore claim that I was "underpaid" relative to these associates would have been a complete non-sequitor.