pageok
pageok
pageok
Judicial Pay: Another Perspective

Click here for the source and further explanation.

For Justice Roberts' view, see here.

tarheel:
Merits of the argument aside, any purportedly academic paper that refers repeatedly to "Democrat judges" or "Democrat colleagues" pretty much instantly loses respect in my eyes.
1.1.2009 12:38pm
corneille1640 (mail):
I apologize for my ignorance on how to read charts, but is it fair to conclude from this chart that compared to others' salaries, judges' salaries have kept pace with the cost of living more than others'? If so, and if the chart is correct, maybe federal judges do not even need a cost of living increase. (I suspect that's where Mr. Posner is headed in the argument in his paper....I could only read the abstract (couldn't open the whole paper).)
1.1.2009 12:38pm
E:
Why not have a chart comparing judges' salaries to those with a post-graduate degree, or those with a J.D.?
1.1.2009 12:43pm
merevaudevillian:
Excellent point, E.
1.1.2009 1:16pm
Yuiop:
What could Posner the Elder make in private practice?
1.1.2009 1:19pm
kiniyakki (mail):
Not a good point E. Why should society divide into different classes? Why not compare all Americans to see if judges are getting screwed? Or at least, why not compare to the average salaries of other white collar workers - including all the people who just lost jobs/money?
1.1.2009 1:23pm
Sander Hjortshøj (mail):
This graph is misleadingly insufficient for a number of reasons, including the one E named (i.e., there's no comparison to true peers, namely lawyers). It is also deficient because it does not indicate whether the incomes are nominal or real, and it reflects dollar-per-dollar increases rather than percentage change.

Come on, Posner, show us the percentage change in income year-over-year in real terms, and include lawyers' incomes. Or does that graph undermine your point?
1.1.2009 1:23pm
George Weiss (mail) (www):
eric-come on-

you can do much better than that...

make meaningful comparisons to peers as others have said...
1.1.2009 1:30pm
gattsuru (mail) (www):
It seems that, if the point is to encourage judicial pay increases as tied to inflation, the best graph would be one showing the earnings of a judge as adjusted by inflation to see if there's actually significant discrepancy.

I'm not sure that proves a point on its own, though. Countries that try tying minimum wages to inflation tend to find themselves (often quickly) going into an inflation spiral. That's probably not a risk for judicial pay, but it does encourage a certain degree of caution.

Providing comparison to those with a similar level of education and experience in similar fields seems like a far more relevant one from a capitalistic viewpoint, while typical cost of living and cost of acting as a judge seems far more relevant from a liberal one.
1.1.2009 1:35pm
Steve:
You seriously wrote "Democrat judges"? Who citechecked this paper, Monica Goodling?
1.1.2009 1:42pm
Well, since you asked . . .:
One source for median lawyer salaries based on field and years of experience. If you're not too lazy to do your own homework, you could also check out the Department of Labor statistics.

Looks like federal judges do extremely well, even when compared to the rest of us rich lawyers. Plus, no billables, perfect job security, prestige, AND a pension. If they're having trouble filling slots, I'm available. I'll even forego COLAs for a decade AND promise not to whine about it.
1.1.2009 1:54pm
Well, since you asked . . .:
Here's the link: www.payscale.com/research/US/Job=Attorney_%2F_Lawyer/Salary"
1.1.2009 1:58pm
corneille1640 (mail):

If they're having trouble filling slots, I'm available. I'll even forego COLAs for a decade AND promise not to whine about it.

Of course, once you're appointed, there's no way to hold you to your promise.
1.1.2009 2:10pm
Roger Schlafly (www):
It appears that the chart does not take benefits into account. If you did, I suspect that judges would appear even more overpaid.
1.1.2009 2:24pm
LTEC (mail) (www):
I agree with some other commenters that it is important to use correct adjectives. "Democrat judge" is no more correct than "woman lawyer" (or "man lawyer", which is never said), and both are used for political reasons in spite of the fact that they sound awful.
1.1.2009 2:26pm
fortyninerdweet (mail):
From the site listed by Well, since you asked.... it looks as if the average attorney with 10 years experience earns slightly over $90K, which seems a bit low in my experience. Could that site be suspect?
1.1.2009 2:32pm
Norman Bates (mail):
fortyninerdweet: The site is not suspect. Your experience is. You might not be familiar, for example, with lawyers in solo practice in non-metro areas, lawyers working as low-level functionaries in private industry and state and local government, etc., etc., and other similar middle-class working stiffs who constitute the vast majority of the labor force that have a JD and/or have passed a state bar exam.
1.1.2009 2:47pm
Cornellian (mail):
Comparing them to "median professional income" is pretty meaningless. A logical comparison would be the earnings of people on career tracks that are realistically available options for a judge, i.e. private practice, government lawyers and law professors.
1.1.2009 3:10pm
trad and anon (mail):
As liberals are so fond of complaining, the top 10% of the income distribution have seen their incomes go up much faster than everyone else's. Looks like federal judges are no exception to this trend.

That doesn't make this a good chart though. Real-dollar comparisons would be much more meaningful.

I still see no reason judges should be singled out as the only part of the federal workforce, other than the President, that doesn't get a COLA.
1.1.2009 3:19pm
Vermando (mail) (www):
Eric Posner - putting the "hack" in "Posner" since 1994.

In addition to the critiques above, it might not be fair to compare judges' salaries to everyone 25 and older - you generally don't get to be a federal judge until after a career of accomplishments, so the better comparison would be with others at the pinnacle of their career.
1.1.2009 3:25pm
Fedya (www):
trad and anon:

Perhaps the rest of the federal workforce (especially the legislators) shouldn't get automatic COLAs either. It wouldn't bother me if they go on an extended strike over the matter. :-)

(More seriously, about 10 years ago here in New York, the Assembly Majority leader claimed the then ~$57K annual salary for an Assembly member was less than minimum wage, and that's why our legislators needed a pay raise. At the time, their salaries translated to minimum wage, if they worked 31 hours a day, 365 days a year.

Sadly, the mendacious bastanrd not only got the pay raises for himself and his colleagues; he's still the Majority Leader.)
1.1.2009 3:33pm
AF:
Well, I'm a Democrat (and a Democratic voter) and while I agree that the use of the adjective "Democrat" is bush league, the chart is not.

It's true that the salaries of federal judges have not kept pace with the salaries of large-firm private lawyers in major markets.

It's also true that they have kept pace with the salaries of members of Congress and of the US population at large.

In the debate on judicial pay, the latter fact strikes me as at least as relevant as the former.
1.1.2009 3:34pm
oledrunk3 (mail):
Why not allow the Chief Justice to swap with Judge Judy between terms?
1.1.2009 3:50pm
RPT (mail):
"It's true that the salaries of federal judges have not kept pace with the salaries of large-firm private lawyers in major markets."

Does anyone seriously contend that "large firm lawyers" are not radically overpaid for what they do, from the associate starting salaries on up?
1.1.2009 3:51pm
Public_Defender (mail):

Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases.

This is Robert's best argument. Too bad he had to try dishonest and sloppy arguments first. Contrary to Roberts' false assertion last year, turnover among judges is minuscule. There are also a lot of very highly qualified state court judges who jump at the opportunity to make the high pay of current federal judges. And at least where I practice, former big firm lawyers are grossly overrepresented on the federal bench.

But even then, his argument is weak. Many government lawyers haven't been getting COLA's recently. Plus, we move up in complexity of cases. I am doing more cases and more complex cases than I was doing five or ten years ago. Judges are doing the same job they were hired on to do. Why should they get more than a COLA?


A logical comparison would be the earnings of people on career tracks that are realistically available options for a judge, i.e. private practice, government lawyers and law professors.

People who chose to become judges chose to become government lawyers. I love my job. I do felony appeals, so there isn't much of a private sector market (few convicted felons have money to hire lawyers privately, and court appointed appellate work pays so poorly as to basically be pro bono). I know I take a pay hit for doing it. Likewise, some people who want to be judges (as opposed to doing tedious civil practice or transactional work) may have to take a pay hit to do be a judge.

Federal judges are still 1) the highest paid judges in the country; 2) the highest paid government lawyers in the country; and 3) the highest paid people in their courthouses.
1.1.2009 3:54pm
TNeloms:
I think the paper's argument (at least in the abstract) is that comparing to peers is irrelevant. The reason you want to make judicial salaries competitive with other career options judicial candidates have is to provide incentive. But the abstract points out that this is only effective if the screening process is reliable and judges are open to sanction (the former is open to question, and the latter is not the case).

So if incentive is off the table, then it's reasonable to look at other reasons such as "fairness," which I think is the point of the graph.
1.1.2009 4:03pm
LHD (mail):
It's Eric Posner.

Did the Democrat readers of this blog expect something different?

Lulz.
1.1.2009 4:07pm
trad and anon (mail):
Does anyone seriously contend that "large firm lawyers" are not radically overpaid for what they do, from the associate starting salaries on up?
Nonsense! Now that first-year bonuses have been slashed to less than $20,000(!), a Cravath associate could make as little as $177,500.
1.1.2009 4:07pm
trad and anon (mail):
Federal judges are still 1) the highest paid judges in the country
I haven't been able to find statistics, but they are probably the highest-paid judges in the world.
1.1.2009 4:16pm
Bill Dyer (mail) (www):
It makes for good arguments, but serves no practical purpose, to debate how much federal judges, or their counterparts in other sorts of legal professions, should make.

The issue here is, very simply, whether you want the most important legal decisions in the country to be made by the most capable legal minds.

"Capable" doesn't necessarily equate to simply legal brilliance, but includes real-world wisdom derived from experience, which tends (with some conspicuous exceptions both ways) to be found in private-sector legal jobs where pay rates are market-driven.

I'm quite sure that if we put the jobs up for competitive bidding, given the benefits package, we could find licensed lawyers who'd take these jobs for $30k a year. But are those the folks you want making these decisions?

That said, nevertheless, Chief Justice Roberts is among the best anecdotal counterarguments for his own position. I believe that he's one of the most capable legal minds in the country. Yet despite the requirement that he take a substantial pay cut from his income as a private-sector appellate specialist at a top-flight D.C. firm, he turned down neither the opportunity to become a judge on the D.C. Circuit nor the opportunity to become Chief Justice. The Nation is acquiring his services at a market-rate bargain, but he's motivated by non-financial factors to permit himself to be exploited to that relative degree. I'm sure that there are some number of other potential judicial nominees who are less public-spirited, and for whom, as a result, the current disparity between what they're making at market rates and what they'd make as judges would cause them to refuse any dangled appointment. But my sense is that at least for the federal bench, there are still "enough" of the most capable legal minds who are willing to make the financial sacrifice required by the current gap between market rates and judicial salaries.
1.1.2009 4:55pm
Michelle Dulak Thomson (mail):
LTEC,

I agree with some other commenters that it is important to use correct adjectives. "Democrat judge" is no more correct than "woman lawyer" (or "man lawyer", which is never said), and both are used for political reasons in spite of the fact that they sound awful.

The weird thing about "woman lawyer" and its kin ("woman doctor," "woman conductor," "woman carpenter," whatever) is that I see this usage all the time from people eager to increase the presence of women in fields where we are now "underrepresented." When the same people refer to men in these positions, they generally use "male [insert profession here]." I've never understood why, and can only guess that it's something about the very sound of the word "female." (I suppose the word is a little irritating — if you imagine it spoken with a Ferengi accent.)

I agree that the adjectival "Democrat" is a bad idea for anyone wanting to be taken seriously. If the idea is to differentiate big-D and small-d "democratic," typography is quite sufficient in written text.
1.1.2009 5:05pm
blabla:
Both sides are missing the point here. The real problem isn't that judicial salaries in general are too low; instead, it's that there's no cost of living adjustment for judges living in expensive areas. A judge whose chambers is in, say, Syracuse, is living like a king on $160K. But that same salary doesn't get you very much in NY, Boston, or LA. Instead of raising salaries across the board, why not just give raises to the judges in the big cities?
1.1.2009 5:23pm
trad and anon (mail):
The issue here is, very simply, whether you want the most important legal decisions in the country to be made by the most capable legal minds.

"Capable" doesn't necessarily equate to simply legal brilliance, but includes real-world wisdom derived from experience, which tends (with some conspicuous exceptions both ways) to be found in private-sector legal jobs where pay rates are market-driven.
We might care about other factors as well. For example, people who earn big-firm salaries get a distorted impression of how the vast majority of people in this country live. We saw this in Roberts's last report when he complained that judicial salaries were so low as to constitute a "constitutional crisis." Trying to attract more big-firm lawyers is also a matter of trying to attract the greedy: unless you are single, you simply cannot bill 2000+ hours without neglecting your family or committing fraud or both. Do we really want more people like that on the bench?
1.1.2009 5:25pm
Guest12345:
Instead of raising salaries across the board, why not just give raises to the judges in the big cities?


Why not just move the courts out of the big cities?
1.1.2009 5:49pm
TNeloms:

Bill Dyer:

The issue here is, very simply, whether you want the most important legal decisions in the country to be made by the most capable legal minds.


The main argument of the paper seems to be that higher salaries does not cause more capable legal minds, at least in the salary regime being considered (obviously if we get down to $30K, that's a different story). You make a good point about Roberts himself as anecdotal evidence, which supports the argument made in the paper.
1.1.2009 5:51pm
Dave N (mail):

Federal judges are still 1) the highest paid judges in the country
I haven't been able to find statistics, but they are probably the highest-paid judges in the world.
Actually, as of 2004, the Chief Justice received $203k, Associate Justices $194k, Circuit Judges $168k and District Judges $158k.

These numbers compare favorably with their state counterparts.
1.1.2009 6:16pm
trad and anon (mail):
I haven't been able to find statistics, but they are probably the highest-paid judges in the world.
Actually, as of 2004, the Chief Justice received $203k, Associate Justices $194k, Circuit Judges $168k and District Judges $158k.

These numbers compare favorably with their state counterparts.
I was thinking of a comparison to the courts of some other rich country like France, Israel, or Japan. I haven't been able to find a worldwide comparison though.
1.1.2009 6:27pm
Cornellian (mail):
Wow, I thought I was the only person irritated by the use of the word "woman" as an adjective (e.g. "woman doctor"). People would never refer to a "man doctor" it would always be "male doctor" so why isn't the female equivalent of that a "female doctor?"
1.1.2009 6:54pm
RowerinVa (mail):
Is part of the resistance to raising judicial pay grounded in the view of decision makers that too many judges are not competent, and until Article III figures out way to impose some quality control, Articles I &II will hold judges' pay hostage?

I have never heard this stated as boldly as the foregoing. It wouldn't be a crazy argument, however. I'm a litigator and I'm occasionally appalled at the lack of basic competence of some federal judges; a minority, to be sure, but a substantial minority. I'm talking about failure to rule on dispositive motions for more than a year at time, repeated failure to learn basic and uncontroversial rules of evidence or statutory law, lack of knowledge of basic science that "smarter than a fifth grader" would assume, etc. In addition, a number of federal judges who once were solid have been rendered unable adequately to perform due to age or illness, yet are still practicing, with their colleagues covering for them and complaints of the bar ignored (often their chief judge prevents them from taking criminal cases but that's cold comfort to the civil litigants). We still have a far better judiciary than any other country's with which I have any experience, but Article III's failure to treat this issue as a serious one -- much less come up with proposals to address it -- is a disappointment, and is something I think about whenever Chief Justice Roberts makes his yearly requests (though on balance I agree with Roberts).

When an Article III-employed inspector general for the courts was proposed, Justice Ginsburg described the very idea as "frightening," and it seems to have gone nowhere. There are Constitutional limits to enforcing some basic standards of judicial competence, of course, but shouldn't we at least debate the idea fully? Note that this is not a partisan issue. I have seen appointees of both parties who had no place, or no longer had a place, on the bench.
1.1.2009 6:59pm
MarkField (mail):

Instead of raising salaries across the board, why not just give raises to the judges in the big cities?


It's my understanding that they do get extra pay. I don't know the exact figure, and I doubt it's enough to make up the cost of living difference between, say, New York and Richmond.
1.1.2009 7:06pm
Public_Defender (mail):

Instead of raising salaries across the board, why not just give raises to the judges in the big cities?

Because judges in the more desirable (and therefore more expensive) cities are compensated by living in more desirable (and therefore more expensive) cities.


The issue here is, very simply, whether you want the most important legal decisions in the country to be made by the most capable legal minds.

"Capable" doesn't necessarily equate to simply legal brilliance, but includes real-world wisdom derived from experience, which tends (with some conspicuous exceptions both ways) to be found in private-sector legal jobs where pay rates are market-driven.

Again, show us the evidence that you can't find highly qualified people to take these jobs. Even using Roberts' undisclosed non-nominee as an example, was the person who took the job less qualified? Prove it.

As to advocacy, I've seen a cross section of work in my state supreme court, and the big firm lawyers aren't the best. Sometimes, they are downright awful. The best are mostly prosecutors, AG's and, yes, public defenders.
1.1.2009 7:18pm
Jay:
MarkField-- Judges are paid the same everywhere; it's set by statute. OTOH their clerks, like most other federal employees, make somewhat more in urban areas based on the pay tables set by the OPM (and largely adopted by the judiciary).
1.1.2009 7:41pm
Donald (www):
A bit unrelated to the thread, but I've been fairly suprised that a recent remark by Scalia didn't get more attention. At the end of the Q&A at the FedSoc Nat'l Convention, Scalia suggested that the quality of the judiciary has been declining because of our current trend towards selecting attorneys whose only experience is working for the government; he argued that such judges were more likely to be too deferential to the government than those who, in private practice, had sued the government or represented clients being prosecuted by the government.

I thought the remarks were particularly notable given the background of Justice Alito.....
1.1.2009 8:42pm
Dave N (mail):
Circuit Judges can live and maintain their chambers anywhere they want within the Circuit. In the Ninth, I am aware of two "California" judges, Charles Wiggins and Stephen Trott, who maintained their chambers in Nevada and Idaho, respectively.
1.1.2009 8:51pm
TerrencePhilip:
Federal judges are still 1) the highest paid judges in the country
I haven't been able to find statistics, but they are probably the highest-paid judges in the world.


trad and anon,

according to this link our British friends won't starve on their salaries even in London.
1.1.2009 9:14pm
Hamilton:
Bill Dyer and Rower in Va. make the point that the issue is not finding great people for the Supreme Court or the Court of Appeal. Rather, it's in the District Court where the money issue hurts.
1.1.2009 9:43pm
Tenille:
I clerked for a state appellate judge about 15 years ago. The amount and intensity of work demanded of a judge, vs a private practitioner, is not on the same scale. I asked my judge, who had been a state legislator, to compare the jobs; he said "I don't compare it to being a legislator [and I secretly guffawed a little], I compare it to being in private practice. I work as hard as I ever did [I don't know about that], there's as much flying at me as ever, but there's no pressure. The only pressure is making decisions, and I can make decisions."
1.1.2009 11:02pm
Allan (mail):
I think a relevant issue is what we pay to government employees in general, and judges in particular.

A businessman can make a million dollars a year and no-one blinks. But pay that to a high school teacher and you are crazy. A good argument can be made that a good teacher, policeman, or fireman is more valuable to society than a wall-street investment banker. So, they should be paid more....

But our society values the ability to make money more, so government employees are paid less. And that includes judges.
1.2.2009 12:35am
tsotha:
Judges also have an intangible reward sought after by people since the dawn of time: Power. The highest paid partner at Biglaw and Associates doesn't have the power to find emanations of penumbras.
1.2.2009 4:28am
Public_Defender (mail):

Bill Dyer and Rower in Va. make the point that the issue is not finding great people for the Supreme Court or the Court of Appeal. Rather, it's in the District Court where the money issue hurts.

No, they did not make that "point." They made that bald assertion, and they failed to prove it. There are plenty of highly qualified people lined up for the highly paid District Court positions.
1.2.2009 8:00am
Joey Plummer (mail):
Lifetime tenure; no pressure to make rain; almost cartoonishly deferential treatment; $100K or more per yr pension; gold-plated health insurance that no management committee is ever going to cut....
and are fed judges forbidden to earn extra money on the side?

Not only do I not think there is any evidence that low pay is keeping significant numbers of people away from the fed bench...I have trouble even imagining such a scenario.

The Edward Bennett Williamses of the world have never been likely candidates for lower court judgeships.

Judges are civil servants. That is where the analysis should start. We do not base how much we pay the psychiatrist at the state hospital on what the top guy on staff at Mass General makes. Same for Governor's pay vs a decent CEO.

Come on.
1.2.2009 8:57am
Public_Defender (mail):
I'll join Bill Dyer and John Roberts in wild speculation as to why even more big firm lawyers don't sign up to be federal judges--the scrutiny and the process. State court judges, especially elected ones, are used to the extraordinary scrutiny and uncertainty that comes with seeking a job through the political process. The same is true to a lesser extent for prosecutors and an even lesser extent for other government attorneys.

I can see how many big firm lawyers would bristle at making their lives an open book and at working through a process that can take years. State court judges are used to starting campaigns well in advance, including spending years building political networks.

Back to the subject of the post. I have seen zero evidence that more money will bring us better qualified federal judges. Zero. I have also seen zero evidence that increasing the number of big firm lawyers would increase the quality of the judiciary. Zero.
1.2.2009 9:22am
justme:
1. No one becomes a judge for the $.

2. There's no shortage of people who want to become judges.

The free market at work.
1.2.2009 9:53am
Ken Arromdee:
A good argument can be made that a good teacher, policeman, or fireman is more valuable to society than a wall-street investment banker.

This is a slight variation of the standard argument that we don't consider teaching to be as valuable as being a sports player or actor.

I've never bought it.

A good Wall Street investment banker (or sports player or actor) does things which affect a lot of people. Assuming that we consider teaching one person or stopping one fire to be more valuable than enabling a company to serve one customer (or an actor to entertain one person), the investment banker, actor, etc. all make it up on volume. Is doing something of minor benefit to a lot of people worth more than doing something which is a major benefit to a small number of people? It certainly can be, if you have enough people.
1.2.2009 10:15am
Allan (mail):
What are we supposed to call a person who judges Democrats?
1.2.2009 10:40am
Bob from Ohio (mail):
Republican Party = Republicans

Communist Party = Communists

Socialist Party = Socialists

Fascist Party = Fascists

Libertarian Party = Libertarians

Members of the Democratic Party should therefore be called Democratics.

Yet they want to be called Democrats. Weird.
1.2.2009 11:05am
Public_Defender (mail):

"Capable" doesn't necessarily equate to simply legal brilliance, but includes real-world wisdom derived from experience, which tends (with some conspicuous exceptions both ways) to be found in private-sector legal jobs where pay rates are market-driven.

A few more thoughts on this:

How does a white-shoe law practice give you "real-world wisdom derived from experience" as to how to fairly and legally sentence someone on drug charges (a large part of a federal judge's job)? Who has more of the find of experience needed to be a fair sentencer? Someone who never litigated a single criminal case or someone who has litigated thousands? New judges from civil backgrounds just don't have the experience to figure out which defendants deserve leniency and which need to be hammered.

Also, go into any courthouse, and the best trial lawyers are almost certainly in the offices of the local prosecutor and local public defender. They are not in the biggest law firms. Those lawyers are typically scared silly at the thought of actually trying a case. Ask civil practitioners how many oral arguments they have done over their careers, and you'll likely get an answer. Most appellate prosecutors, AG's and PD's do so many we can't even count them.

Finally, Dyer and Roberts both think white show law firm lawyers should be more heavily represented on the federal bench, but the one group I see least is former criminal defense lawyers. I don't think anyone on the US Supreme Court has ever tried a criminal case. They may not even have ever represented a criminal defendant. Yet they are the final arbiters of ineffective assistance of counsel claims. The problem is less bad further down the federal bench, but not much. It's rare to come across a federal judge who knows even a little about representing criminal defendants.
1.2.2009 11:22am
PeterWimsey (mail):
@Bob - blame the English language.

Here is another example:

Fred is a Catholic. Fred is a Catholic lawyer.
Fred is a Jew. Fred is a Jew lawyer.

Do you see the problem? Does this help you understand resistance to the term "Democrat party?".
1.2.2009 11:52am
Roger Schlafly (www):
Fred might not like being called a Jew lawyer because of certain stereotypes about Jews and lawyers. I suppose that someone might not like being called a Democrat judge either. But the terms could still be appropriate and accurate.
1.2.2009 12:26pm
Ravdi:
Also, go into any courthouse, and the best trial lawyers are almost certainly in the offices of the local prosecutor and local public defender. They are not in the biggest law firms. Those lawyers are typically scared silly at the thought of actually trying a case. Ask civil practitioners how many oral arguments they have done over their careers, and you'll likely get an answer. Most appellate prosecutors, AG's and PD's do so many we can't even count them.


I dunno Public Defender, I've done criminal and civil litigation and while I agree that the best criminal litigators are as good at their jobs as the best civil litigators, their jobs are very different. Trying a civil case is different from trying a criminal case, though you have the same rules of evidence and the procedures are similar: there's a difference in the way you prepare your witnesses, the lawyers are more involved in selecting and preparing experts, and the procedural dimension is much more complex.

Far fewer civil cases go to trial compared to criminal but that is largely client-driven, and based on each side's assessment of risk. Certainly in business cases, you have people on each side accustomed to gauging risk, and if they settle a case after evaluating it, maybe the lawyers have done their jobs- maximized their client's legal position and gotten the other side to offer something the client can accept- rather than chickened out. Also, the trial judge's assessment of what should happen in a civil case is much more influential than it is in criminal cases. Many criminal cases go to trial because the client feels he has nothing to lose: if there's a lot of evidence against him, and he has a plea offer involving many years in prison, he feels he has little to lose. Or, the DA could have a crappy case, such as a date-rape indictment, and the defendant has a good chance to beat it at trial- why would he plead guilty to a sex crime and ruin his life, instead of taking his chances? You usually don't have cases that one-sided that get very far along in the civil context, partly because the people with the worst legal position want to cut their losses early (like when my aunt was killed in a head-on collision with an idiot driver in a company vehicle-- their insurer approached us to mediate the case, and we settled the matter without ever having to file suit).

Maybe there are some civil lawyers "afraid" of a trial, especially the ones with little experience, but I wouldn't make the mistake of comparing the worst of one kind of lawyer with the best of the other.
1.2.2009 12:40pm
Allan (mail):
I suppose one could also say that an internist is "afraid" of neurosurgery.
1.2.2009 1:06pm
Public_Defender (mail):

I suppose one could also say that an internist is "afraid" of neurosurgery.

Not really. I was referring to the "litigators." I've heard too many comments from too many judges about "trial lawyers" afraid of actually trying cases.

Ravdi,

In terms of "gauging risk," that's what criminal defense lawyers and prosecutors do all the time. Most criminal cases settle. When your client has a plausible, but not rock solid argument, that he's not guilty, you try making the call about whether he should accept a manslaughter plea to avoid a murder conviction. Or, on the flip side, when you, as a prosecutor, firmly believe a defendant is guilty of murder but have problems with your case, do you offer a deal that will inflict this guy back on society in few years or do you roll the dice at trial?

Consider a sex abuse case. If a prosecutor offers too good a deal, a child molester could get out sooner than if the case had gone to trial, but if the deal isn't good enough, the child molester might luck out with a not guilty verdict (cases based on child statements are very difficult to predict). Likewise, as a defense attorney, maybe your client is not guilty, but the kid says he did it. If he takes a deal, he's tarred as a sex offender for life.

I've done civil practice, and decisions in criminal cases are much more difficult because the stakes are much higher.

As to complexity, it's true that you have more discovery tools to maneuver through in civil cases, but that's because you actually get discovery. If criminal defense lawyers want pre-trial information, we have to get it by persuading people to give it to us.

But one key difference between civil and criminal lawyers is that civil lawyers only have to know civil law. To be a good criminal defense lawyer or prosecutor, you have to understand the rules of civil procedure. First, they fill in the gaps of the criminal rules. Second, sometimes civil cases are the only way to get relief for our clients (writs, declaratory judgments, TROs, etc.). So good criminal lawyers must also be good (or at least passable) civil lawyers.

I also think you underestimate the complexity of many criminal cases.
1.2.2009 1:24pm
Ravdi:
Fine then, PD: you are the greatest. We're all just jealous of you.
1.2.2009 1:35pm
Displaced Midwesterner:
"and are fed judges forbidden to earn extra money on the side?"

For the most part, yes. They can teach and publish, but neither pays much for most judges, and any judges actually doing their job who aren't on the Supreme Court and getting summers off don't have much time to do either.
1.2.2009 1:54pm
Public_Defender (mail):
"Fine then, PD: you are the greatest. We're all just jealous of you."

Damn. You win.
1.2.2009 2:42pm
PeterWimsey (mail):
Fred might not like being called a Jew lawyer because of certain stereotypes about Jews and lawyers. I suppose that someone might not like being called a Democrat judge either. But the terms could still be appropriate and accurate.



The reason that "Jew lawyer" is insulting in the way that "Jewish lawyer" isn't is because bigots historically used the grammatically incorrect form as a way of denigrating Jewish lawyers. While the effect of "Democrat Judges" is obviously not as bad, the motivation is exactly the same.

Here are some more tests of basic English:

Lord Saint-John is an aristocrat. He has fine aristocratic manners. [or would you say he has fine "aristocrat manners?"]

Tony is a bureaucrat. He is responsible for many bureaucratic policies. [Or would you say bureaucrat policies?].
1.2.2009 2:53pm
Bob from Ohio (mail):

Does this help you understand resistance to the term "Democrat party?".


No.

One term describes members of an religious minority which has suffered. The other describes the dominent US political party.


The reason that "Jew lawyer" is insulting in the way that "Jewish lawyer" isn't is because bigots historically used the grammatically incorrect form as a way of denigrating Jewish lawyers. While the effect of "Democrat Judges" is obviously not as bad, the motivation is exactly the same.


Another religious minority = dominent US political party comparison.

Weird.
1.2.2009 3:53pm
Public_Defender (mail):
Bob from Ohio,
That's just dumb. Using "Democrat" as an adjective as opposed to "Democratic" is pure political rhetoric. Some Republicans think that "Democratic" sounds too good. When someone uses "Democrat" as an adjective, I know they aren't to be taken seriously, and I just move to the next article, post, or comment. I suspect many other people do the same.
1.2.2009 3:57pm
Medrawt (mail):
When someone uses "Democrat" as an adjective, I know they aren't to be taken seriously, and I just move to the next article, post, or comment. I suspect many other people do the same.

Exactly. There's, at minimum, an element of civility here; continually referring to a person or group improperly or incorrectly (on purpose) is rude. This is true when ignoring an individual preference (if I introduce myself as Richard, you shouldn't address me as Rick) or, as in this absurd case, ignoring commonly agreed upon grammar. For whatever reason, far beyond my knowledge of the evolution of Greek words and parts of speech as absorbed into the English language, the adjectival form for "a democracy" or "a democrat" is "democratic". Is this important? Of course not. But persistently ignoring the point when it's a mildly well known trope is childish in a way that doesn't inspire confidence and trust.

And of course that's additional to the special rhetorical mode of using a noun where one expects an adjective, which is generally understood to be insulting. For lots of groups, which have the same form for both parts of speech, this isn't an issue - Republican, Catholic, Mexican. (90% of the time I've heard this it's been a joke about ignorant fear, but consider the deliberate awkwardness of referring to "a gay" rather than "a gay man" to better express contempt.)
1.2.2009 4:22pm
DLL Circulation Worker (mail):
How can Roberts ask in good conscience to get paid more in a time of recession when everyone on whose behalf he is asking for a raise is in at worst the top 5% of American income?

That's raw greed, right there. None of these people will ever want for anything. If the pay is really so bad, then I'd rather have everyone who thinks so leave and go where they belong (Wall Street), and populate the benches with people who want to be there and appreciate the absolutely lavish lifestyle they are afforded on our dime.
1.2.2009 5:55pm
tarheel:
It's simple really. To say someone is a Democrat judge is just grammatically incorrect. So either the authors made a series of grammatical errors or they purposely introduced partisan hackery into their article.

Since I read a draft version of this article last spring and pointed out to one of the authors this mistake (I'll let you figure out which from my login name), and they apparently chose not to fix it, I can only assume it is the latter.
1.2.2009 6:34pm
autolykos:
A couple points people wouldn't know unless they've worked in a large law firm:

1. Making (and often staying) partner at a large law firm is dependent on a number of variables, only some of which have to do with the qualities that make a person a good judge (legal judgment, intelligence, etc.). Inability to bring in or maintain business, for example, is a reason people get asked to leave firms and has nothing to do with them not being capable potential judges.

2. There's no shortage of talented BigLaw attorneys asked to leave law firms in any given year. Some of it is just a numbers game (profitable firms operate on leverage), some of it are non-judgment issues I noted above. Many of these are in litigation, where there aren't a lot of exit opportunities, so it's like there's some shortage of potential judges.

3. The idea that there's a huge market for federal judges among large firms strikes me as somewhat ridiculous. For the most part, those judges don't have anything a large law firm wants (either business, connections or some kind of marketable expertise) or couldn't get just as easily from the people that are being run out of the firm every year.

4. I'm not going to get back into a discussion on how markets work, but the discussions on how much people "should" make are just stupid. The subjective value of the person's chosen occupation has almost nothing to do with how much they're paid. For large firms, associates are paid a lot because they're there, not because they're good.
1.2.2009 6:48pm
Bob from Ohio (mail):
Public_Defender and Medrawt et al.

If you ignored it, Republicans would get tired of using Democrat. Since Democrat Party drives you guys crazy, it is used as often as possible.

Sure, using Democrat is childish but throwing tantrums in response is not exactly mature
1.3.2009 12:50am
Randy R. (mail):
Medrawt: "(90% of the time I've heard this it's been a joke about ignorant fear, but consider the deliberate awkwardness of referring to "a gay" rather than "a gay man" to better express contempt.)"

too true. And whenever someone says "homosexual" instead of gay, most of the time it's someone who dislikes gays.

Bob from Ohio: "Sure, using Democrat is childish but throwing tantrums in response is not exactly mature."

I dont' see anyone throwing a temper tantrum (or would you prefer the phrase 'hissy fit'?). All we are saying is that the use of certain words often betrays the prejudices of the writer. Like labeling Obama a negro, for instance.
1.3.2009 2:11am
tarheel:
Definitely no tantrums being thrown. If Sean Hannity or Mitch McConnell want to do it, I could not care less, as it is a partisan usage and they are self-avowed partisans. Why a group of academics seeking, presumably, to convince people of the correctness of their analysis would do it is beyond me.
1.3.2009 6:50am
Public_Defender (mail):

If you ignored it, Republicans would get tired of using Democrat. Since Democrat Party drives you guys crazy, it is used as often as possible.

Did my post sound like it drove my crazy? If so, I wrote poorly. I do find it annoying, but that's it. And you're right, the purpose of using the expression is to push the buttons of your opponents. That's why I know I shouldn't take anyone who uses it seriously.

Of course, Sean Hanity and Rush Limbaugh seem to be doing just fine without me in their audience. They are very popular with their fans, but they have zero influence outside of their base. If that's what you want, fine. There's a place for aggressive partisan rhetoric. Just don't expect it to persuade anyone of anything.
1.3.2009 7:39am
Public_Defender (mail):
Come to think of it, we liberals should be grateful that some Republican partisans use "Democrat" as an adjective. It's a real time saver because it instantly signals that the speaker or writer is not to be taken seriously.

I enjoy reading commentary by thoughtful people with whom I disagree. That's part of why I read this blog. Reading a thoughtful author who challenges your position makes you think more than reading only people who confirm what you already believe.

So, thank you right wing blowhards for giving us a word to signal that you are not worth listening to. It's very helpful people looking for thoughtful conservative or libertarian writings as opposed to loony rants.
1.3.2009 10:42am
Randy R. (mail):
Public Defender: I whole heartedly agree. Using certain key words in any debate helps me out a lot. Whether the word is democrat, homosexual, negro, colored, or (on the other hand) capitalist, corporate overlords,
it tips the hand of bias from the speaker, and I know I'm about to get propaganda, not reasoned debate.

And yes, I'm sure I've used words that tip my bias on occasion. People, whatever their stripe, sometimes slip into language that betrays their bias.
1.3.2009 11:03am
pluribus:
Medrawt:

There's, at minimum, an element of civility here; continually referring to a person or group improperly or incorrectly (on purpose) is rude.

Yes, it is rude, but also hostile and contemptuous. I am not now, nor have I ever been, a Democrat, but I recognize people who say "Democrat Party" as egregiously offensive. I don't call people "Japs" or "Chinamen" for the same reason I don't call the largest political party in the US the "Democrat Party." It's agreed on in civil society as offensive. It's gramatically incorrect. It's stubbornly hostile, and if I did it it would reflect more on me than on the people I am purporting to describe.

As a historical note, it was common throughout the 19th century to refer to the party we are referring to as "the Democracy" as well as the "Democratic Party." This was a kind of nick-name, used respectfully, sometimes affectionately. No, it didn't mean that members of the party were the only ones who supported popular rule, or free elections, or government that is responsible to the people. It meant only respect for one of the two major political parties of the country. Lincoln spoke from time to time of "the Democracy," though he fought Democrats throughout his political life. It was a mark of his civility and respect for his opponents, qualities that seem to be lacking in the Bobs from Ohio of the world.

Another historical note. Years ago, I used to hear a lot of people mispronounce the names "Roosevelt" and "Reagan." They said "Rue-se-velt" and "Ree-gan." It was always done by their political opponents, who would not accord them the common courtesy of pronouncing their names correctly. Here one of these names mispronounced like that, and you immediately knew their enemies were speaking.
1.4.2009 11:58am
LegalCardinal:
Three thoughts: "Lies, Damned Lies, and Statistics!"
1.8.2009 2:27pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.