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2008 Year-End Report on the Federal Judiciary:
It's available here, just in time. From the Chief Justice's report:
I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. . . . Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years. One year later, Congress has still failed to complete action on that crucial remedial legislation, despite strong bipartisan support and an aggregate cost that is miniscule in relation to the national budget and the importance of the Judiciary's role. To make a bad situation worse, Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even though it provided one to every other federal employee, including every Member of Congress. Congress's inaction this year vividly illustrates why judges' salaries have declined in real terms over the past twenty years.

Given the Judiciary's small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the Judiciary's modest petition: Simply provide cost-of-living increases that have been unfairly denied! We have done our part—it is long past time for Congress to do its.
Thanks to Howard Bashman for the link.

  Happy New Year, everyone (which I mean in an entirely inoffensive way).
fortyninerdweet (mail):
Our beneficial congresspersons were too involved in making sure they, themselves, were adequately remunerated to waste efforts fairly compensating others it seems. Time well spent, I say. [/sarcasm switch]
12.31.2008 7:06pm
trad and anon (mail):
As you are well aware, Roberts needs to make the case that the judiciary needs a bailout. They'd be a lot more likely to get a bailout than a COLA.
12.31.2008 7:08pm
John (mail):
I think district court judges have the hardest jobs and should be compensated at levels higher than circuit judges. As far as Supreme Court justices are concerned, their frequent practice of following whatever their consciences say at the moment, rather than what the Constitution does say, is and has been a terrible subversion of the rule of law. They should receive no raises.
12.31.2008 7:20pm
arbitraryaardvark (mail) (www):
Inflation as measured, say, by the price of housing in DC,
or the price of a gallon of gas.
12.31.2008 7:36pm
wm13:
Maybe with some more money, we could hire someone who knows how to spell "minuscule." One of the things I used to admire about the Supreme Court is that the last time I checked, it had never misspelled "de minimis" in an opinion, but that was about five years ago, and it seems standards have slipped.
12.31.2008 7:36pm
Soronel Haetir (mail):
So, do you think the Justices are regretting their ruling on Congressional automatic pay raises yet? If they aren't going to get raises, they could at least prevent Congress from getting one either.
12.31.2008 7:49pm
Mike& (mail):
Did Justice Roberts support his claim using empirical evidence? Or are we simply to believe that judges are underpaid.... "just because"?

Also, Chief Justice Roberts likes to note that large firm lawyers make as much as most federal judges. That's true.

Then again, how many large law firm lawyers were fired from their jobs this year? How many federal judges were fired from their jobs this year? Does job security have an economic value?

When there is a shortage of qualified applicants for judicial appointments, I'll believe there is a compensation problem.
12.31.2008 7:54pm
Roger Schlafly (www):
How many federal judges quit in the last year in order to take a better paying job elsewhere? If very few have done that, then the judges probably overpaid.
12.31.2008 7:56pm
Redlands (mail):
I was right with him until he got to the part about protecting the Constitution.
12.31.2008 8:01pm
Sean M.:
We can agree, at the very least, that the judiciary should get a COLA increase. Right?

Right?
12.31.2008 8:12pm
Obvious (mail):
This is one of those counterfactual hypotheticals, right? IF judges actually protected the Constitution, THEN they would deserve a raise? Who could disagree?
12.31.2008 8:20pm
Oren:
It should be illegal for Congress to legislate any dollar amount in nominal dollars. All values already written into law should be construed to be in real dollars, as measured at signing.

The 7th amendment, for instance, only guarantees jury trials for suits in excess of $8,175.00 (give or take). The founders' will in this instance has been so badly eroded as to be a joke -- $20 doesn't even cover the filing fee!
12.31.2008 8:22pm
Oren:

This is one of those counterfactual hypotheticals, right? IF judges actually protected the Constitution, THEN they would deserve a raise? Who could disagree?

Usually one pays for goods before receiving them, not after (at least that's been true for my limited experience in commerce).
12.31.2008 8:24pm
CDR D (mail):
Federal judges have a lifetime job, unless they are removed for cause. Isn't that so?

They get a generous retirement, too, don't they? And they don't have to serve for 20 or 30 years to get that retirement... do they?

If their pay is not sufficient compensation for having the power to protect the Constitution, maybe they should just go into private law practice and get rich by trying to subvert it.
12.31.2008 8:55pm
J. Aldridge:

Given the Judiciary's small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy...


I think he really meant to say this: "Given the Judiciary's small cost, and its absolutely critical role in protecting judicially created laws and edicts we enjoy..."
12.31.2008 8:59pm
Perry Dane:
wm13 wrote:

Maybe with some more money, we could hire someone who knows how to spell "minuscule."

Not so fast.
See here.
12.31.2008 9:00pm
Christopher Cooke (mail):
The problem I have with Roberts' argument is that all federal judges are paid the same, regardless of their performance or years on the bench, and he is ignoring the fact that they get that pay for life and regardless of whether they do any work for it. So, a straight comparison with law firm salaries is off the mark.
12.31.2008 9:36pm
Hanging Party:
Chief Dude Roberts deserves his own Fat Cat Cra$h Pad:
Before Merrill [Merrill Lynch] hired Kraus as an executive vice president, he negotiated a $50 million pay package for himself - with the bulk of that guaranteed to him if the company was sold.

Although he did not officially start work until September, Kraus hit the jackpot after just a couple of days, when Merrill CEO John Thain sold the company to Bank of America for $50 billion amid the stock-market meltdown.

The sale automatically triggered the $25 million payout under Kraus' contract. He left Merrill this month. The amount represents about 0.1 percent of Bank of America's $25 billion capital injection from the government as part of Congress' rescue package.


You don't think Congress is really going to ask for the $25 million back from Kraus? If they did, that Chief Roberts Dude would tell no.

Hang 'em all.
12.31.2008 9:53pm
Shady3L:
Roberts argument is that federal judges should recieve similar pay to law school deans. The comparison with law firm salaries was entry-level big-law salaries, not parters. The federal judicial salary is $165,200 - less than what a judicial clerk will make at many firms their first year.
12.31.2008 9:55pm
Mike& (mail):
Roberts argument is that federal judges should receive similar pay to law school deans.

Whenever someone uses an analogy or metaphor, I ask: How are the two things being compared alike or not alike? Metaphors are often illustrative. But they are also a powerful rhetorical device that distracts.

Law school deans are not public servants. They are hired, in large part, on their ability to raise money. They are money makers for law schools.

In light of this, why do you find the comparison between dean's and federal judge's persuasive?
12.31.2008 10:03pm
Sean M.:
Note that Roberts' argument this year is much more modest: Judges should get a COLA. Not the same as Deans, but a COLA.

That seems reasonable to me.
12.31.2008 10:07pm
Hanging Party:
Judges should get a COLA.


Someone buy Roberts a diet coke. There's a soda machine around the corner.

Joey Cassano walks away with a million a month:
Cassano was president of AIG's financial products division, which trafficked in the credit-default swaps, or CDS, which we learned earlier proved so dangerous.

Rep. Bruce Braley (D-Iowa) angrily recited the tale of Cassano's tape: He earned $280 million in cash — more than AIG chief executives — and for every dollar his financial products unit made, 30 cents came back to Cassano and other top execs.

After the unit lost $11 billion, Cassano was fired Feb. 29 of this year, Braley pointed out, and got to keep $34 million in bonuses and was kept on as an AIG consultant at a salary of $1 million per month.


If Roberts wants real money, he should quit and become a “federal judiciary consultant”.

He can drink his cola out of a brown paper bag.

Hang 'em all.
12.31.2008 10:18pm
LHD (mail):
Report begins:

This past November, the Smithsonian Institution completed an acclaimed renovation of its National Museum of American History, which houses many of our Nation's most treasured historical artifacts.

I went over there a few weeks ago. Total. Suckage. Just saying. If you want to make an appealing case, don't start with something that blows.
12.31.2008 10:27pm
jim47:
I'm surprised that no one has mentioned this argument, which I recall Ann Althouse making on her blog in the past, so I'll just briefly summarize it:

Judges don't just "interpret the constitution" they are also tasked with statutory and administrative law that may have pretty high complexity and specialization, especially at non-SCOTUS levels of the judiciary. You want the people trying to sort out those important but technical questions to know what they are doing, which means having some judges with the appropriate knowledge. Getting those people, as opposed to ideologically-motived people who will receive non-monetary compensation from judicial jobs, requires spending money at competitive rates.

Put another way, we need to spend enough money that there isn't too much truth to the old joke: Q) What do you call a lawyer with below average intelligence? A) "Your honor."
12.31.2008 10:41pm
Hanging Party:
... as opposed to ideologically-motived people who will receive non-monetary compensation from judicial jobs, requires spending money at competitive rates.


That's a crude threat: Chief Justice Roberts and his colleagues demand more money... or they'll take bribes!

Someone buy that man a senate seat.

Hang 'em all.
12.31.2008 11:02pm
Kazinski:
How clueless is Roberts? From Opensecrets.org:

Search Criteria:
Donor name: John Roberts
Cycle(s) selected: 2008

records found in 0.021 seconds.
Total for this search: $0

I suspect most of the other Federal Judges are pikers too. What do they need the money for, obviously they're not willing to pay to play.
12.31.2008 11:04pm
DiverDan (mail):

This is one of those counterfactual hypotheticals, right? IF judges actually protected the Constitution, THEN they would deserve a raise? Who could disagree?


Usually one pays for goods before receiving them, not after (at least that's been true for my limited experience in commerce).


That's true, but when I buy goods in Commerce, the UCC grants me certain implied warranties, like merchantability and fitness for a particular purpose, and I am free to negotiate for others; if the goods don't conform to the contract, I have a right of return. With the Federal Judiciary, I get no warranties at all, and certainly no right of return (like they would do me any good! Remember who gets to decide the case if I sued for a Federal Judge breaching the warranty of fitness for the purpose of deciding cases in accordance with the law!). As I see it, when we accept a Federal Judge, we take him (or her) "As Is, With All Faults", and have to live with him and his decisions come hell or high water. I don't know about you, but I pay less (sometimes a lot less) for commercial goods with no warranties, express or implied, and absolutely no rights whatsoever if the goods turn out to be faulty or even harmful. When I can sue Federal Judges for negligence for getting cases wrong (just like I can sue lawyers for malpractice), then I will agree that they ought to get a market rate of compensation.
12.31.2008 11:19pm
Oren:

That's true, but when I buy goods in Commerce, the UCC grants me certain implied warranties, like merchantability and fitness for a particular purpose, and I am free to negotiate for others; if the goods don't conform to the contract, I have a right of return.

You retain the right to alter or abolish your purchase, isn't that enough?


As I see it, when we accept a Federal Judge, we take him (or her) "As Is, With All Faults", and have to live with him and his decisions come hell or high water.

No, you've just delegated your power to remove him to your duly elected (and sometimes improperly appointed) Senators.


I don't know about you, but I pay less (sometimes a lot less) for commercial goods with no warranties, express or implied, and absolutely no rights whatsoever if the goods turn out to be faulty or even harmful.
12.31.2008 11:56pm
Slobiously:
Supreme Court justices get paid more per case decided now than they did at the turn of the last century in nominal dollars. That's an amazing statistic, and really speaks volumes about why they shouldn't get the raise.
1.1.2009 12:18am
Mike& (mail):
Supreme Court justices get paid more per case decided now than they did at the turn of the last century in nominal dollars.

They also get a summer vacation - like in high school. Law schools then pay them thousands of dollars to teach in Europe or other vacation destinations - all expenses paid.

Does Chief Justice Roberts mention those perks in his request for pay? If not, why not?

Also, unlike law school deans and law firm associates, federal judges have control over their schedules. Not a bad perk, is it?

As a public servant, the Chief Justice should do more than simply advocate for a pay raise. He should fully disclose the benefits of being a federal judge. Give the public all of the information needed in order to rationally analyze the issue.

Should full disclosure be something a public servant would give? Why then, does the Chief Justice cherry pick facts that make federal judgeships look like hardships?
1.1.2009 12:43am
Bob from Ohio (mail):

We can agree, at the very least, that the judiciary should get a COLA increase. Right?


No. Neither should Congress or any federal official.

I like Roberts but this constant whining about pay is not becoming.

If they want to make law school dean salaries, become one. Didn't Paul Cassell do that?
1.1.2009 1:02am
corneille1640 (mail):

Supreme Court justices get paid more per case decided now than they did at the turn of the last century in nominal dollars. That's an amazing statistic, and really speaks volumes about why they shouldn't get the raise.

I don't follow your point. Aren't nominal dollar amounts today bound to be much higher than a 100 years ago? Isn't what's important the 'real dollar" or "constant dollar" amounts?
1.1.2009 4:15am
Mike S.:
One judges whether one is paying enough not by comparing what people get paid for supposedly similar jobs, but either by what one's competitors are paying for the same job, or by retention and recruitment. Are federal judges underpaid compared to state ones? No. Is there a problem recruiting and retaining judges. I don't know about the district court level, which tends not to make the news, but there does not seem to be any rush of appeals or SC judges to the higher paying jobs of the private sector, nor a dearth of qualified applicants for openings. When was the last time a Supreme Court justice resigned to take a private sector job? The closest thing I can remember is Goldberg going to the UN, but that wasn't about money and in any event was 45 years ago.
1.1.2009 5:33am
Public_Defender (mail):
Lawyer John Roberts was one of the best advocates around. Chief Justice John Roberts hurt his case dramatically by making arguments that bordered on the dishonest. If I had made an argument as sloppy as his argument that high turnover among judges requires a raise, I'd have had my head handed to me (and justifiably so). The Cassell argument that he couldn't manage to support a family on $170K a year is a close second.

Just saying, "Hey, don't let inflation cut our pay" is far more persuasive than arguing that they were underpaid even though they are 1) the highest paid government lawyers in the country; 2) the highest paid judges in the country; and 3) the highest paid employees in their courthouses
1.1.2009 10:14am
Sean M.:
Everyone is debating the argument Roberts made last year, not this one. His message this year was: Keep us in line with inflation. Nothing more.
1.1.2009 12:24pm
Jmaie (mail):
The federal judicial salary is $165,200 - less than what a judicial clerk will make at many firms their first year.

And compared on an hourly basis?
1.1.2009 12:56pm
OrinKerr:
Everyone is debating the argument Roberts made last year, not this one. His message this year was: Keep us in line with inflation. Nothing more.


SeanM, sure, if you actually read the report, that's what he's arguing. But a lot of people feel they've been wronged by the federal judiciary or that they're underpaid, too, so the Year-End Report on the Federal Judiciary is also the Year-End Opportunity to Vent.
1.1.2009 1:17pm
Reprobation:
Frankly, if they want to be taken seriously the plutocrats at the Court need to offer to keep [i]their[/i] salaries frozen while other judges' salaries are raised. I don't care how many villas Breyer wants or how many mansions Roberts needs or how many opera companies Ginsburg wants to fund, there are real people in the real America who get by without those perks.

As for Roberts's absurdism about how first year associates get paid more than him -- I'm willing to guess every first year associate in the country would be more than willing to trade his job for Roberts's. Maybe Tiny John should take one of them up on the deal?
1.1.2009 1:31pm
Guest12345:
His message this year was: Keep us in line with inflation. Nothing more.


It's not a compelling argument. It is a bit disingenuous to claim a need for a cost-of-living-adjustment when your salary is several times your cost of living.

Secondly, why should the bulk of Americans degrade, albeit indirectly, their own spending power by giving a COLA to the rich?

Finally, don't these guys have any idea of how to get a raise? They should be telling us what they are doing better than before in order to justify the increased pay. Not just telling us that inflation is giving them a pay "cut".
1.1.2009 1:38pm
OrinKerr:
It is a bit disingenuous to claim a need for a cost-of-living-adjustment when your salary is several times your cost of living.


What is a judge's cost of living? And how did you calculate it?
1.1.2009 1:52pm
Bob from Ohio (mail):

But a lot of people feel they've been wronged by the federal judiciary or that they're underpaid, too, so the Year-End Report on the Federal Judiciary is also the Year-End Opportunity to Vent.


Well, I guess there is only one approved view on the matter. Opposition views are fueled by jealousy or other improper motives.

COLA increases are just as bad as straight increases. Most people do not get guaranteed COLA increases.

These people are federal judges. Lifetime appointments. Incredible deference. Power. Nice pensions.

Yet they continue to complain about the pay that puts them in the top 2% of Americans. Americans who pay their salaries.

How much did these judges make in private practice before hand? Do they have no investments?

I called it whining before. It still fits.
1.1.2009 2:00pm
Reprobation:

What is a judge's cost of living? And how did you calculate it?

Start with insurance on a Bentley, factor in the price of caviar (which has gone way up due to sturgeon overfishing in the Black Sea) and foie gras (also up due to PETA protesting), add on a season's opera tickets at the Met (including airfare or at least roundtrip Acela) and, grudgingly, the Kennedy Center, upkeep on a five bedroom in McLean or Georgetown -- and maybe still a mortgage on the summer house in the country -- don't worry about the yearly trip to Europe, which is covered by others, and I suppose we also need to consider Saville-Row suits and crocodile skin wallets -- even for Ruth, unfortunately -- and maybe another hundred thousands for miscellany. Then take the whole thing and divide by .9 in order to make up for the Catholic tithe.
1.1.2009 2:03pm
Mike& (mail):
But a lot of people feel they've been wronged by the federal judiciary or that they're underpaid, too,

That a surprising statement coming from you since it's not substantive and merely designed to insult people who oppose pay increases. I'm neither underpaid nor hateful of the judiciary. I have a lot of respect for some judges - but little respect for others.

I just think they already make plenty of money already, especially given the work-life balance and other perks.

And it's not so simple as saying, "Just give us a COLA." That's all we're asking for. If a person is already being paid enough (or more) money for the job, why should he or she be given a raise?

COLA raises shouldn't be viewed as an entitlement. So if you want to ask for a raise, a person who ask, "Aren't you already overpaid," is not ignoring that you merely asked for a raise. He's saying, "Before we get to the raise question, let's look at your current salary and benefits." That's just good critical thinking.

Anyhow, if judges would actually do something to actually punish the bad judges, maybe a pay raise for everyone would be appropriate. But how many years did Manuel Real get away with running his little fiefdom with no scrutiny?

And look at the Samuel Kent case.... Look at the efforts to sweep his alleged conduct under the rug.

When the thin black line is pierced, and bad judges are actually disciplined, then judges will have a stronger argument in support of a pay raise.
1.1.2009 2:16pm
Guest12345:
What is a judge's cost of living? And how did you calculate it?


In this country, where all men are considered equal, the cost of living is the same whether you are a judge or a flight attendant. There have been numerous government agencies that have calculated how much people need to live. In particular the IRS has a fairly detailed plan.

I'll ignore the implied "judge specialness" implied by your question.
1.1.2009 2:21pm
Sean M.:
Sadly, I think Orin is right on this one. How people feel about judicial pay raises is more a reflection of how much they like/hate the federal judiciary.

I think the most striking point in Roberts' report is that the judiciary as a whole (including staff and all the rest) is only 0.3% of the federal budget. Clearly, if the Chief wants to get pay raises, he needs to convince Congress the Federal judiciary is "too big to fail" and get a bailout.
1.1.2009 2:25pm
OrinKerr:
Mike&,

No, it was not design to insult. It was designed to explain why several commenters appeared not to be responding to the argument Roberts was actually making instead of the one he made last year.
1.1.2009 2:51pm
OrinKerr:
In this country, where all men are considered equal, the cost of living is the same whether you are a judge or a flight attendant. There have been numerous government agencies that have calculated how much people need to live. In particular the IRS has a fairly detailed plan. I'll ignore the implied "judge specialness" implied by your question.

This sounds like the Harrison Bergeron theory of how to calculate a person's cost of living. I appreciate the sense of equality that this implies, but I had thought a person's cost of living was a factual question, not a matter of theory.

To be clear, I'm not saying I agree with Roberts' argument. But I don't see what's so offensive about Roberts making the pitch on behalf of the federal judiciary. Seems to me that it's just his job.
1.1.2009 2:59pm
Mike& (mail):
How people feel about judicial pay raises is more a reflection of how much they like/hate the federal judiciary.

A lot of people who have a lot of respect for the judiciary think that judges are paid just fine. Why is that so hard to understand?

I grew up in a family of 6 with my dad making $10,000. So, for me, it's a class issue. I know how the other half lives. I know how the bottom 10% of people live. I have some perspective. From my perspective, $169,000 w/benefits and lifetime tenure and the ability to set your own schedule and have lots of power and make supplement income teaching and getting travel expenses to seminars in exotic locations paid for, is a very, very, very good deal.

If my dad had been a hedge fund manager or doctor, maybe I'd feel differently.

Moreover, judges all say they are public servants. Well, it's people like my family and the working poor that the judges allegedly serve. You really don't think it's odd then, that they want to make so much more money than they people they supposedly serve?

Look at the data on household income. A quick Google search will turn it up. Judges are in the top 1-5% of income earners.

They deserve more (whether it's COLA or an outright pay adjustment)? Why? Since when should public servants make substantially more than the people they allegedly serve?

Oh, and Orin, I don't think you can discuss a pay raise unless you first look to current pay. So I don't think the comments on judicial pay in general are non-sequitors. Again, if you asked your boss for a raise, wouldn't your boss first ask if you're already paid enough? Mine sure would.
1.1.2009 3:06pm
first history:
A Modest Proposal: Litigants (particularly civil litigants) should pay fees to the court that cover the expense for hearing their claims--after all, they are the ones generating the court's workload. Judges would receive a percentage of the fees, which would be high enough to cover all trial costs. If the plaintiff wins, then the defendants would be charged for the court's time. If the plantiff loses, they bear the cost of litigating a losing claim.

In criminal cases, defendants would be charged fees according to their ability to pay. Wealthy defendants would be charged the entire cost of their trial; if acquitted they would receive a 50 percent rebate and the government would pay the rest. Indigent defendants would need to forfeit all of their assets in order to qualify for a free defense.

This would dramatically reduce the cost of justice and reduce the number of frivolous lawsuits.
1.1.2009 3:07pm
jim47:

That's a crude threat: Chief Justice Roberts and his colleagues demand more money... or they'll take bribes!


You completely misunderstand my post. "Non-monetary" doesn't mean bribes, it means the joy of wielding power. Do you want the federal judiciary to consist of people who think it is worth taking a pay cut in order to impose their ideology onto the law?

Seriously, all of you keep complaining about how these judges are just in it to make [expletive deleted] up. Have you ever thought that there might be a connection between judicial pay and the goals of people who decide to enter and stay in the judiciary?
1.1.2009 3:26pm
jim47:

If you asked your boss for a raise, wouldn't your boss first ask if you're already paid enough? Mine sure would.


None of mine would. They'd ask 1) whether I could make more elsewhere and 2) what it would cost to replace me. Whether I am "paid enough" in some social justice sense wouldn't enter into it.
1.1.2009 3:33pm
Public_Defender (mail):

Everyone is debating the argument Roberts made last year, not this one. His message this year was: Keep us in line with inflation. Nothing more.


My comment said that this is the argument he should have been making all along. The other comments show that Roberts predicament is an example of how making sloppy or borderline dishonest arguments (like the absolutely false assertion that the judiciary has a high turnover rate) hurts your credibility long term. When you crossover into dishonest/extraordinarily sloppy arguments, people remember. And it hurts you the next time, even if your next arguments are sound.

I'm told that attorney John Roberts was one of the best advocates out there. It's amazing how quickly he lost that ability.
1.1.2009 3:35pm
OrinKerr:
Mike, asks me:
Oh, and Orin, I don't think you can discuss a pay raise unless you first look to current pay. So I don't think the comments on judicial pay in general are non-sequitors. Again, if you asked your boss for a raise, wouldn't your boss first ask if you're already paid enough? Mine sure would.
Mine wouldn't, although I don't know what that is supposed to show one way or the other.

Mike, here's a question in response: What should the pay be for a federal judge, in your opinion? Throw out some numbers, and let's see if we can reach some agreement.
1.1.2009 3:56pm
Guest12345:
This sounds like the Harrison Bergeron theory of how to calculate a person's cost of living. I appreciate the sense of equality that this implies, but I had thought a person's cost of living was a factual question, not a matter of theory.


First I never said that everyone needs to be held down to some particular level. To clarify what I said (because either you didn't understand or you're intentionally choosing to misrepresent what I said): what any particular person needs to live, barring people who have severe and chronic medical conditions, is basically the same as everyone else. That amount is quite low compared to the justice's current pay. And no, I'm not saying that federal judges should be living at the bare minimum possible. But no one with any integrity can claim that judges aren't receiving enough to be exceptionally well off. Given that staying in office for fifteen years qualifies them for 100% of their final pay for the rest of their lives, they don't even have to put anything away for their retirement years.

It doesn't look like any of these guys and gal are missing meals on a regular basis.

If a substantial portion of the rest of the country isn't seeing pay increases I don't think a valid argument can be made that judges aren't staying in parity with everyone else.
1.1.2009 4:51pm
Public_Defender (mail):

What should the pay be for a federal judge, in your opinion? Throw out some numbers, and let's see if we can reach some agreement.

Given the pay of top level government attorneys (USA's, for example) and the pay of state court judges, federal judicial pay seems about right, especially when you consider how many high quality people seek the few available jobs and how rare it is for a federal judge to resign.

That said, COLA's seem fair. They shouldn't lose pay year after year. If they were worth X real Dollars five years ago, they are worth X real Dollars now.
1.1.2009 6:26pm
Miniskill:
Court salaries should be tied to median profits per partner at the top 15 firms in the Vault Rankings -- I think 25% above that average would be fair. Realistically, these guys would be the best partners at the best firms in the country if they weren't judges. I mean, can you imagine what Wachtel could do with a Manny Real or Steve Breyer or Johnnie Rawlinson?
1.1.2009 6:42pm
Mike& (mail):
What should the pay be for a federal judge, in your opinion? Throw out some numbers, and let's see if we can reach some agreement.

That's a very hard question. We can't use the free market argument, since obviously there is no free market for judges - in the sense that someone can't demand a pay raise to move from the highly desirable S.D.N.Y. to the less desirable E.D. Tex.

That said, do we have a shortage of qualified applicants for the job? If we do not, then the right amount to pay judges is whatever they are currently being paid (or less, which of course we can't discuss since it's constitutionally impossible). If there is a shortage of qualified applicants, then we'd need to raise to pay to address that.

Some have a position that judges do important work, and should be compensated accordingly. But by how much more? It seems that any number we throw around is going to be arbitrary. If you say that a district judge should make $200,000; how can someone say that they deserve $250,000? Both are arbitrary numbers. Who can use logic or reason to best support his position if we don't have any standards?

I agree that they do important work, but as public servants, they should recognize that being a top 1% wage earner with the tangible and intangible benefits of being a federal judge, they are paid enough already. And that the lack of a shortage of qualified applicants is evidence that judges are adequately paid.

Do you believe there is a shortage of qualified applicants for federal judgeship? I suspect you'd accept an appointment, and I consider you a qualified applicant. I know many qualified people who would give up a lot of money to be a federal judge. But maybe I'm wrong about the shortage issue. Am I? Is there a shortage?

What standard should we use in deciding how much judges should be paid? In other words, if I say they deserve $150,000, and you say $200,000; how can either of us begin to support our positions, other than saying, "Well, they deserve that much?"
1.1.2009 9:11pm
OrinKerr:
Mike,

Well that's the question -- what's the standard? I took your earlier comments to suggest that you had a specific standard in mind.
1.1.2009 9:24pm
Houston Lawyer:
Why does anyone think that judges should be paid based upon Biglaw scales? Biglaw salaries are tied to hard work and, at the partner level, rainmaking. I've seen a few judges hired and while they may be bright, they don't generally have marketable skills.

Although I currently earn more than judges do, I don't get lifetime employment, guaranteed vacations or even a guarantee that I won't be fired next week just to cut costs. And I don't get a pension when I retire.

Meanwhile, their positions are greatly sought after by people who generally would be no less compentent than the incumbents. When they start quitting in droves, I'll start to think they might be underpaid.
1.1.2009 9:25pm
Harold Kovins:
What always struck me is that this is so easily solved by allocating the burden of proof to those demanding more money. If they can produce more than one or two judges who have left the bench for financial reasons or one--just one!--person who turned down an appointment, then they'd be on to something.

The biggest outrage of judicial pay, of course, is that the salaries are inverse to the work and correlated with the desirability of the job. Anyone offered a Supreme Court job at $35k a year would take it in a heartbeat; a great many talented lawyers would decline a district court job at $120k a year. The pay scale should track that. Being a Supreme Court justice should be a basically volunteer position.
1.1.2009 10:42pm
OrinKerr:
Harold Kovins,

I think there are actually a lot of people who turn down judicial appointments because of the money. My understanding is that it's actually routine. And it's pretty understandable, too: If you're making a million a year as a law firm partner, it's pretty understandable that you're not going to consider a job offering you about one seventh of that for life!
1.1.2009 11:18pm
Harold Kovins:
"Lots of guys at my law firm turned down federal judgeships all the time. It was no big deal."

Is there any single example of this anyone has ever provided?
1.1.2009 11:33pm
Mike& (mail):
Well that's the question -- what's the standard? I took your earlier comments to suggest that you had a specific standard in mind.

The standard is: Where there is an adequate supply of applicants for a position, then the wage offered need not be raised. Here, there isn't a shortage of qualified applicants. Therefore, the wages are proper.

In a Platonic sense, maybe that's not perfect. But I'm not sure there is a better standard. Is there? If so, what is it?
1.2.2009 12:15am
OrinKerr:
Mike&,

I guess I don't know what an "adequate supply of applicants" is. As I understand it, lawyers don't apply to be federal judges: They are approached by the White House and asked if they are interested. My anecdotal sense has been that it's not uncommon for lawyers to say "no," in part because of salary and in part because the job isn't all that interesting to a lot of people. But I assume that the government can keep looking until it finds someone who will take the job, and eventually it can always find someone who can take the job and isn't unqualified on paper.

If my picture is correct, how do we know what salary creates an "adequate supply of applicants"? I'm pretty sure that we would have a higher quality judiciary of the pay were higher, as fewer would say no, but I don't know how we get a realistic sense of that without having been involved directly in the process (which neither of us have been).
1.2.2009 1:22am
Harold Kovins:
Does anyone really think that the really bad judges wound up on the bench because better jurists were offered the jobs, turned it down, and then the president appointed some ill-educated partisan hack to fill the job? It just seems so obvious that bad judges get there not because we can't get good judges to take the job but because the politicization of the judiciary and the discomfort of the appointment process leads to undesirable selections.

That may not be true at the district court level, although there, perhaps especially, I get the sense that the judgeships are bought and paid for with political favors and there is really no effort to make a meritocratic appointment. I think it might not be crazy to double district court pay, while holding circuit court and SCOTUS pay the same.
1.2.2009 1:39am
Public_Defender (mail):

As I understand it, lawyers don't apply to be federal judges: They are approached by the White House and asked if they are interested.

That's not true here. A state appellate judge said that he went through an application procedure that went through our senator's office. Maybe that was the exception, but I doubt it.


how do we know what salary creates an "adequate supply of applicants"?

Chief Justice Roberts made the argument last year that a raise was needed for that reason. You'd think that if anyone could make the case, he could. But he utterly failed.
1.2.2009 8:06am
OrinKerr:
Public Defender,

There is no general application procedure for federal judges. And when you say that Roberts "utterly failed," does that mean that you personally found his argument unconvincing, or that there was some broader failure?
1.2.2009 11:15am
Public_Defender (mail):
Professor Kerr:

I agree that there is no "general application procedure for federal judges," but at least locally, our senator used one. People could literally apply to be federal judges.

As to Roberts "utterly failing" to prove his case, he argued high turnover justified raises, but when lots of people crunched the numbers, turnover among federal judges was about as low as turnover could be for any position.

Roberts also argued that the judiciary would be better off with more white-show law firm lawyers and fewer experienced state court judges. That's a policy argument you can agree or disagree with. But he gave no evidence that the judiciary would be better off with more such lawyers or that higher pay would make any significant difference in achieving.

So the white-show-law-firm-lawyers-make-better-judges argument was at least arguable, but the turnover argument was not just wrong, it was either dishonest or extraordinarily careless.
1.2.2009 12:03pm
Thorley Winston (mail) (www):
Although I currently earn more than judges do, I don't get lifetime employment, guaranteed vacations or even a guarantee that I won't be fired next week just to cut costs. And I don't get a pension when I retire.


Those are excellent points. There's a definite trade-off in having a job where you don't get an automatic COLA but you have a virtual guarantee of lifetime employment at a salary that's in the top 5% of income earners and you get your annual salary for life after fifteen years' service.

Mind you, I'm emphatically not agreeing with those who want to use this as an excuse to rag on federal judges because of disagreements with their jurisprudence. I suspect a lot of us are ourselves or have loved ones who are either earning less than federal judges, out of work, in fear of losing their jobs, and/or a lot less secure about their retirement have trouble empathizing with Chief Justice Roberts' argument.
1.2.2009 12:26pm
Displaced Midwesterner:
"That may not be true at the district court level, . . . "

And if there is a good argument to be made for pay raises, it is at that level. There are more district court judges, they make more decisions, decide more cases, on average work harder than appellate judges, and, in the aggregate, are probably therefore more influential than the appellate courts. But these are also the judges who receive the least scrutiny. It is also at the district level that a qualified lawyer is most likely to turn down a spot on the bench because of financial reasons. There is little empirical evidence on this because people who turn down the bench don't go around making it public record. But, like Orin, I also anecdotally know that it happens.
1.2.2009 2:08pm
KD:
In my state, district court judges do apply for the position, to the senior U.S. Senator from the state. The Senator then reviews the applications s/he receives and makes a recommendation (which, as I understand, is almost always taken) to the President, who then makes the appointment. It is my understanding that those who do apply are often encouraged to do so--by the Senator(s), by sitting judges, or by the White House. The "application process," then, as I understand it, is really just a way to avoid the situation where the administration approaches a candidate only to have him or her turn down the appointment (for whatever reasons, though I also anecdotally know that this happens for financial reasons).
1.2.2009 3:52pm
Public_Defender (mail):
Maybe Roberts changed his tune for another reason. Let's say he actually could show that the "low" (laugh) pay for federal judges causes too many to resign. Those who resigned would most likely be the relatively young lawyers Bush II has nominated. Why would a Democratic Congress think it would be a bad thing for Obama to replace money-hungry, young Republican judges?

That brings up another point. Republicans seem to like to appoint young judges so that they can leave their mark for as long as possible (compare Scalia, Thomas, Alito, Roberts and Souter to Ginsburg and Breyer). If "low" (laugh) pay discourages young, Republican white-shoe lawyers from taking lifetime appointments as federal judges, I'm all for lowering the pay further.
1.2.2009 4:37pm

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