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Posner on Judicial Salaries:

Posner's views are generally consistent with mine: (1) it's hard to judge the efficiency of government salaries because they are not market-based; (2) there is no reason to believe that, as a rule, federal judges are underpaid; and (3) paying judges the same amount regardless of local cost of living makes little sense.

UPDATE: Whoops, my VC RSS feed doesn't seem to be working, and I didn't notice Ilya's posting on the same topic.

Dave N (mail):
I have no doubt that the Chief Justice was making a salary well in excess of a $1 million a year during the Clinton years, when he was in private practice as a partner at Hogan &Hartson.

However, he gave that up for the pay of a Circuit Court Judge in 2001--largely, I am sure, because he recognized the prestige of being a judge on the D.C. Circuit.

I agree that it is ridiculous for first year associates to make more than federal judges--but that is not something that will be solved in the manner Chief Justice Roberts proposes.
3.20.2007 10:16pm
Public_Defender (mail):
I agree that it is ridiculous for first year associates to make more than federal judges--but that is not something that will be solved in the manner Chief Justice Roberts proposes.

Maybe we could impose a 60% marginal tax rate on first-year lawyer income that exceeds $100K, then transfer the money to federal judges.

(For those with a broken humor meter, this is a joke.)
3.20.2007 10:21pm
Ilya Somin:
Maybe we could impose a 60% marginal tax rate on first-year lawyer income that exceeds $100K, then transfer the money to federal judges.

I just hope there's some money left over to redistribute to all of us starving law professors:).
3.20.2007 11:45pm
Dave N (mail):
Or public attorneys like myself. I also make a lot less than first-year associates--and I bet less than Ilya does too!
3.20.2007 11:47pm
Justin (mail):
Whew. Another reason to be happy I missed my first year associateship :)
3.21.2007 12:42am
Jake (Guest):
I'm curious, what is backing the strong support people tend to show for cost of living adjustments? I'm not really passionate about the issue, but it seems to me that living in (say) New York provides certain benefits to compensate for the extra cost compared to living upstate. Why treat the decision on where to live differently from any other consumption decision?
3.21.2007 1:13am
Cornellian (mail):
But there is one compensation measure that is long overdue and could be effectuated at minimum cost to the federal fisc. That would be to introduce a cost of living differential.

Having spent the entire article making the point that judicial salaries are not too low because there are still plenty of applicants for the bench and few resignations, Posner then undercuts his entire argument with this last point. If the abundance of applicants and the rarity of resignations shows the judicial salaries are fine (and I'm not convinced it shows this) then what does it matter if the salary is the same in North Dakota as it is in New York? It's not like there's a shortage of people willing to accept an appointment to the SDNY.

He doesn't do a very good job against the argument that the current salaries detract from the quality of the bench. The fact that there area lot of applicants doesn't mean you're getting good judges. It may be hard to measure the effect of low salaries on the quality of applicants but that doesn't mean it doesn't exist. The fact that there are few resignations doesn't mean much either, since a low quality applicant won't resign for the same reason he was happy to be appointed in the first place.
3.21.2007 3:08am
guest:
I dunno, Cornellian, maybe Judge Posner means that to address the different but related topic of maintaining salary parity within the different layers of the judiciary.

It's kind of like the animal rights activist who claims that the abandoned bear cub needs to be killed in order to save it. Similarly, salary differentials must be implemented to maintain pay parity.
3.21.2007 3:35am
Public_Defender (mail):
He doesn't do a very good job against the argument that the current salaries detract from the quality of the bench. The fact that there area lot of applicants doesn't mean you're getting good judges. It may be hard to measure the effect of low salaries on the quality of applicants but that doesn't mean it doesn't exist. The fact that there are few resignations doesn't mean much either, since a low quality applicant won't resign for the same reason he was happy to be appointed in the first place.

But Roberts doesn't do a very good job of supporting his argument that current salaries detract from the quality of the bench. Since he is the one trying to change the status quo, it's his burden.
3.21.2007 5:39am
Public_Defender (mail):
Maybe we could impose a 60% marginal tax rate on first-year lawyer income that exceeds $100K, then transfer the money to federal judges.

I just hope there's some money left over to redistribute to all of us starving law professors:).


Or public attorneys like myself. I also make a lot less than first-year associates--and I bet less than Ilya does too!

I recently heard a federal judge speak about judicial pay. He makes roughly 3x my salary, but complained that the judicial salary would make it difficult to send his kids through college. That really ticked me off. Anyone who lacks the money management skills to pay for college on a guaranteed salary of $165+K a year should not be wearing a robe.

I think it's a good idea to look at the salaries of all government lawyers, and raising the pay of judges would have a trickle down effect on the rest of us. So for personal reasons, I hope they get a raise, but they are making a lousy case for one.

When it comes to raises for government lawyers, judges are way, way back in line. If turnover is a reason for giving raises, money should be first devoted to the offices of local prosecutors, public defenders, and legal aid.

Posner is right about something else, measuring the value of government lawyers is hard. Our office could fill its ranks with a starting pay at 35K, but we would get the same quality of lawyers as if we paid 60K to start? I doubt it. How do we measure that? And how do we justify paying 60K to our funding source or justify a 35K lawyer to someone who's life is on the line? Is failure a sign that we don't have enough resources or that we don't deserve the resources we have?

Finally, Chief Justice Roberts, when my pay is at least half that of a district court judge, I will be a lot more sympathetic to your cause.
3.21.2007 5:57am
dearieme:
If their pay consists of three parts -(i) power, (2) fame, (3) salary - then if you underpay on (iii) you'll attract to the job those who rate (1) and (ii) highly. Perhaps that's part of the reason that SCOTUS is so prone to ignore the Constitution and usurp the power of legislators?
3.21.2007 7:44am
Lioni Albers (mail) (www):
Or public attorneys like myself.
I also make a lot less than first-year associates--and I bet less than Ilya does too!
3.21.2007 9:33am
Justin (mail):
dearieme, would you like to name the long list of great legal minds who have refused judgeships? The only person I can think of is Judge Luttig, who in fact did serve for over a decade on the bench in any event.
3.21.2007 10:46am
Smallholder (mail) (www):
Forgive the temerity of someone from outside the legal profession asking a question, but:

If retirement is generous (FULL PAY at 65 or 70), then I suspect we can determine if Judges are motivated by non-monetary compensation (prestige, interest, shaping the law, altruism, etc.) After meeting retirement criteria, Judges are essentially working for $0. They will be paid their full salary whether they are retired or not. If Judges work past retirement eligibility, then their non-monetary compensation is sufficient to keep them working.

So, here's the question: What proportion of judges retire immediately upon reaching the eligible age?

then
3.21.2007 11:50am
Dave N (mail):
Justin,

I believe both Ken Starr and Robert Bork resigned from the federal bench in part to earn more money in the private sector. I believe Archibald Cox turned down a federal judgeship of some kind because of the pay--but I could be wrong.

Smallholder,

I can only speak anecdotally based on my judicial district, but in the last decade, only 2 federal district judges completely left the district bench. One was promoted to the Court of Appeals and the other retired. Two other federal judges took senior status and still maintain a caseload.
3.21.2007 12:38pm
Justin (mail):
No. Ken Starr resigned to be Soliciter General of the United States. Robert Bork resigned following his failed Supreme Court bid (he went on to become a senior fellow at the AEI, hardly the most financially lucrative use of his time).
3.21.2007 3:03pm
Perspective:
My heart bleeds for the federal judges! How they must endure low salaries in the 160s!

Who cares about all the state prosecutors and public defenders making in the 30s and 40s?
3.21.2007 6:18pm
theobromophile (www):
Anyone who lacks the money management skills to pay for college on a guaranteed salary of $165+K a year should not be wearing a robe.

Actually, not really true. With tuition, room, board, and books exceeding $50,000/year at some schools, most people could not afford to send two kids through college. That's $400,000 in cash, not to mention graduate school. Take out taxes, living expenses, and a reasonable mortgage, and you can see how there's not much left.

Generally, $150,000/year is a bad place to be for financial aid. You make too much to qualify but too little to afford it yourself.

Who cares about all the state prosecutors and public defenders making in the 30s and 40s
?

State, not federal. Different issue.

Second, there's the opportunity costs. Most federal judges could be making a million a year in private practice.

This is not to say that I really support a massive pay raise for the judiciary. The problem is really that Congress raises their pay a lot, then does nothing for a decade or two. Effectively, judges' salaries decrease over that time. Psychologically, it's tough, as people accllimate themselves to their paycheck. If Congress were to pass more frequent, but smaller, pay raises, much of that could be avoided.
3.22.2007 7:33am
Perspective:
If "[m]ost federal judges could be making a million a year in private practice" and choose not to, then they prefer being federal judges. Apparently, money is not their main motivation. So, what's the problem?
3.22.2007 8:23am
David M. Nieporent (www):
Actually, not really true. With tuition, room, board, and books exceeding $50,000/year at some schools, most people could not afford to send two kids through college. That's $400,000 in cash, not to mention graduate school. Take out taxes, living expenses, and a reasonable mortgage, and you can see how there's not much left.

Generally, $150,000/year is a bad place to be for financial aid. You make too much to qualify but too little to afford it yourself.
Uh, you've heard of savings, right? You don't have to write the $400,000 check -- which of course is over 8 years of schooling anyway -- out of a single year's paycheck. You're supposed to put away money to send your kids to school.


As for names, Michael Chertoff also resigned from the bench, allegedly for monetary reasons.
3.23.2007 4:48am
Public_Defender (mail):
Generally, $150,000/year is a bad place to be for financial aid. You make too much to qualify but too little to afford it yourself.

If an expensive college costs $50K a year, a federal district court judge can pay all expenses out of current income and still have $115K a year to live on. If the judge had saved some money, the burden will be a lot less. Maybe we should expect judges to plan for their kids' futures, like the rest of us do.

Anyone who can't send their kids to college on $165K a year lacks basic money management skills. Maybe they have to live in a less lavish house, take less lavish vacations, and drive a less lavish car than a partner at a large firm would, but so what?

Statement: Who cares about all the state prosecutors and public defenders making in the 30s and 40s?

Response: State, not federal. Different issue.

Why? It's perfectly fair to compare judges' pay to the pay of other government lawyers. Even if judges deserve more money, there are other priorities for giving raisies.
3.23.2007 6:54am