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Judge Stephen Larson's Resignation Does Not Show that Federal Judges are Underpaid:

Federal District Judge Stephen Larson's recent resignation from the bench has led to renewed claims that federal judges are underpaid and should get a pay increase (see also here). Larson cited low pay as the main reason for his decision to resign. I can understand Larson's desire to for a higher salary. But the evidence strongly suggests that current pay rates are enough to maintain a high-quality judiciary. I have previously written several posts defending that view (see here, here, here, and here), and I remain unrepentant.

Currently, federal court of appeals judges make $179,500 per year and district judges $169,300; Supreme Court associate justices get $208,000 and the Chief Justice clocks in at $217,400. It is true that these salaries are less than what many judges could make as partners at big law firms. However, it's important to consider the total compensation of judges, not just their salaries. Once you factor in judges' imprssive nonsalary compensation - prestige, shorter working hours, interesting work, generous pensions, lifetime job security, and freedom from any need to deal with clients - the rewards of being a federal judge are quite competitive with the alternatives. That explains why so many talented lawyers lobby hard to get judgeships, and why judicial resignations are vanishingly rare. Between 1990 and 2005, only 21 federal judges resigned from the bench before reaching the retirement age, a rate of attrition less than 0.3% per year.

Judge Larson's early resignation made news in part because it is so extraordinarily unusual. He is also unusual for another reason: he has seven children. Unlike some of the commenters to Orin's post, I don't presume to tell Larson and and his wife how many children they should have. But it is obvious that a family with seven children faces more difficult financial challenges than one with the more typical one to three children. It is certainly possible to support seven children on a district judge's salary. I know several judges and legal scholars with that many or more children who seem to be doing fine on salaries comparable to the one Larson had. Still, it's not an easy task to support so many kids. However, very few prominent lawyers have as large a family as Judge Larson. Thus, even if judicial pay really is too low for his family, that still doesn't prove that we need a pay increase in order to ensure the overall quality of the federal judiciary.

Related Posts (on one page):

  1. Judge Stephen Larson's Resignation Does Not Show that Federal Judges are Underpaid:
  2. Federal Judge Resigns After 3 Years on Bench, Citing Low Judicial Salary:
John Armstrong (mail) (www):
It sounds like there's an Umeshism here: "If you've never had a judge retire, you're paying them too much."
9.20.2009 1:51am
OrinKerr:
Ilya, if you'll alow me to pose a question to you, here's the really interesting question: Are George Mason law professors underpaid?

I assume your answer is "no," as there are many very qualified people who would be delighted to give up their jobs to teach law at George Mason given the interesting work, flexible hours, job security, etc. Granted, maybe higher pay would draw some marginally better people, or make a few people stay who would otherwise leave, but I gather you think the pay system is "good enough" to get a good enough faculty.

Or am I wrong?
9.20.2009 2:09am
Ilya Somin:
Ilya, if you'll alow me to pose a question to you, here's the really interesting question: Are George Mason law professors underpaid?

I assume your answer is "no," as there are many very qualified people who would be delighted to give up their jobs to teach law at George Mason given the interesting work, flexible hours, job security, etc.


Orin, you are exactly right (except in possibly expecting me to disagree with you). I do not believe that George Mason law professors are underpaid (at least not as a group - I don't know the exact salary of every individual), and for precisely the reasons you indicate. I say that despite the fact that GMU pay scales are actually somewhat lower than at most other comparably ranked law schools. Still, we have no trouble attracting strong faculty at the current pay rates. And, as with federal judges, the nonsalary elements of our total compensation are enough to offset our relatively low salaries compared to lawyers at big firms.
9.20.2009 2:15am
Grover_Cleveland:
Supreme Court Justice Scalia has nine children. Per child, his salary of $208,000 is actually slightly less than Larson's. Should we expect him to resign soon?
9.20.2009 2:17am
OrinKerr:
Ilya,

Here's the next question: If someone were to give George Mason Law $50 million to be used to pay higher faculty salaries, could that money be used to get George Mason a substantially better faculty?

My sense is that the answer to that is "yes" -- the money could be used to get a good number of top people who wouldn't really consider teaching George Mason under its existing pay system. So more money could in fact lead to a better faculty. Why is that relevant? I think it points to an implicit judgment being made when we consider whether a class of people is "overpaid" or "underpaid", which is whether the marginal improvement in the quality of people that would take the job if we increased the pay is one that we think is worth the added cost. That is, we're implicitly making a judgment about how much it matters to have Group A versus slightly different Group B. That's the really difficult question, I think, and one that I haven't seen addressed in any depth. So for example, imagine we doubled judicial salary, and we could then get a group of people who previously wouldn't accept a judgeship to instead take the job (or to have some people who left early stick around instead). Would we be better off as a country to have that slightly different set of judges, given the actual cost to the taxpayer? I think that's the key question.

I should add that while I think federal judicial salaries should be raised somewhat, I think it's more important to take steps to make the job more interesting: My sense is that among the many people who are not interested in being federal judges but would be fantastic if they were, the main reason they're not interested is that the job just isn't as interesting as it used to be given the modern trial docket, not because of the pay.

Finally, I entirely agree with the title of Ilya's post: Surely the resignation of a single person cannot show anything about whether the 1,000+ federal judges are underpaid.
9.20.2009 2:31am
Ilya Somin:
Here's the next question: If someone were to give George Mason Law $50 million to be used to pay higher faculty salaries, could that money be used to get George Mason a substantially better faculty?

My sense is that the answer to that is "yes" -- the money could be used to get a good number of top people who wouldn't really consider teaching George Mason under its existing pay system. So more money could in fact lead to a better faculty.


Sure, the answer is "yes" - if the pay increase were big enough. The same holds true for federal judges. However, in both cases, I think the increase would have to be truly massive to make a big difference in quality, given how high the total compensation of judges and legal scholars (including nonsalary compensation, of course) already is. The sorts of increases that are under discussion (usually in the range of 10 to 20%) would lead to little or no improvement in quality.

I also don't think that the improvement in quality we could get from truly massive pay increases would be worth the cost. That is especially true in the case of federal judges, where the goal is not to ensure that we get the absolute best judges possible, but to ensure that the judges are good enough to minimize the incidence of mistaken decisions caused by insufficient competence.
9.20.2009 2:42am
Xrayspec:
When Judge Larson accepted his appointment 3+ yrs ago, he surely knew what the pay scale was, and surely knew how many children he had. Is it really likely that he's resigning to protest the low wages of the federal judiciary? (What, did he expect that Congress would vote him a big raise right after he got to the bench?) As explanations go, it's mildly plausible but mostly rings pretextual. Perhaps, as an unusually young district judge (45) he's just bored with the work and got a better offer.
9.20.2009 2:50am
one of many:
Ah, the good old quality/price curve: there's big difference between a $20 meal and a $5 meal but there's next to no difference between $100 meal and $115 meal.
9.20.2009 2:51am
OrinKerr:
Ilya writes:
I also don't think that the improvement in quality we could get from truly massive pay increases would be worth the cost. That is especially true in the case of federal judges, where the goal is not to ensure that we get the absolute best judges possible, but to ensure that the judges are good enough to minimize the incidence of mistaken decisions caused by insufficient competence.
I understand that you believe this is the goal, but I'm not sure I agree (or that everyone else does). My sense is that a few outstanding judges can make a really dramatic impact on the law, and that it's in our Nation's interest to have those outstanding judges.

Of course, I don't know if a significant pay increase would actually lead to more outstanding judges. But if we thought it very well might, or even were pretty sure it would, isn't that a reason to at least consider such a pay increase?
9.20.2009 2:55am
Disintelligentsia (mail):
I am one of seven children. My father raised us on a school teacher's salary - one I guarantee was considerably less than that of Judge Larson. I don't feel slighted by having to with a little less growing up. He needs to get a grip.
9.20.2009 3:06am
Michael Benson (mail) (www):
I'd like to tag on to Orin's point:

It's pretty clear to me that we don't have enough data to be certain of the change in quality given a change in pay for judges. First of all we lack a clear system for measuring "incompetent," "competent," or "outstanding" judges. Second, even if we had such a measure, we would still need data to know how much an improvement in salary would improve the quality of lawyers seeking the bench.

Further, the number of judges leaving the bench for higher paying jobs seems to me to be an insufficient metric of how effective the compensation is for attracting the right candidates. One would expect that the judges who would be most likely to leave the bench for higher paying jobs would be those judges who could command the highest salaries. But, it isn't clear to me that being an incredibly valuable attorney for a law firm necessarily requires the same qualities as being an outstanding judge. I would guess that the judiciary in fact competes quite a bit with the academic market, which offers similar (though distinct) perks.

Consequently--whatever decision we are making is based ultimately on an educated guess. Given the incredible importance of the judicial branch, the extremely high demands in terms of experience, knowledge and intellect (among other factors) for excellent judges, and the relatively low marginal cost of increasing salaries I think the case for raising them is fairly strong.
9.20.2009 3:13am
Ilya Somin:
I understand that you believe this is the goal, but I'm not sure I agree (or that everyone else does). My sense is that a few outstanding judges can make a really dramatic impact on the law, and that it's in our Nation's interest to have those outstanding judges.

It depends on what you mean by "outstanding." If outstanding means "producing legal precedents that get outcomes right," I agree it's an important goal. But to my mind, ideology, flawed judicial philosophy, and the necessary limitations of generalist judges in dealing with specialized issues - not lack of technical legal competence - are the causes of most of the important bad decisions we see. Higher salaries are unlikely to solve these problems, even if they marginally increase the already very high technical competence of the federal judiciary.
9.20.2009 3:15am
yankee (mail):
It is true that these salaries are less than what many judges could make as partners at big law firms.
Talk about understatements! Every federal judge in the country could get an enormous salary increase by moving to private practice. I agree that federal judges are not "underpaid" but that doesn't justify misrepresenting the magnitude of the difference.
9.20.2009 4:02am
D.O.:
Is there such thing as objectively better judge? Sure, on a low level there is. I would make an absolutely disastrous judge by any measure. But on higher levels it is not obvious. Is there any objective measure to find who is better J. Scalia or J. Ginsburg? There is another problem with analogy to added money for law school faculty. Better faculty hired on better salaries for a particular institution are most probably just faculty currenly teaching in better paying schools. As a country, US obviously does not have "other" federal judges to buy off.
9.20.2009 4:10am
Wayne:
I suspect if you look at the judges appointed in the last ten years, more than a few of them were partners at large law firms making quite a bit more than they do as federal judges. James Robart, a district judge in the Western District of Washington, was a partner at Lane Powell, for example. If senior partners in large law firms are willing to take pay cuts to be federal judges, the compensation package is probably sufficient.
9.20.2009 4:55am
Jay:
"I understand that you believe this is the goal, but I'm not sure I agree (or that everyone else does). My sense is that a few outstanding judges can make a really dramatic impact on the law, and that it's in our Nation's interest to have those outstanding judges."

Orin, you really personify (I think somewhat oddly for a man of your age; it comes off as borderline affected) a sort of old-fashioned professorial style of speaking on this blog--interrogating everyone as if they were your students; pretending you're interested in their responses to your "questions," when your questions are essentially just veiled statements of your view. What exactly is the point of this? It makes you sound like a jerk, to be honest. Especially here, when directed at an academic colleague. If you have an alternative argument to make, why not just make it?
9.20.2009 6:46am
BN (mail) (www):
It makes you sound like a jerk, to be honest. Especially here, when directed at an academic colleague. If you have an alternative argument to make, why not just make it?


That is a bit harsh. I am going to go ahead and cancel out your vote.

Keep on doing what you are doing Prof. Kerr. I enjoy your thorough and thoughtful comment style. Thank you for your efforts.
9.20.2009 7:56am
Gilbert (mail):
I was surprised to see that judges make $170,000+. That's a hell of a lot of money! There are dozens of public service employees that deserve to have their pay increased before we start worrying about getting judges over the $200,000 mark.
9.20.2009 8:59am
Eli Rabett (www):
The pay of federal judges is capped by the pay for Congress. Given the fact that any raise in Congressional pay is demagogued by all opponents in the next election and reflexively demagogued by the Repbulicans already elected, Congressional pay is not going to go up to the levels that are being discussed here. There have been efforts (mostly by the judges) to decouple, but given the lack of respect for Congressional intent in legislation of the judiciary (yes, you Antonin) Congress is never going to decouple.

Live with it
9.20.2009 9:19am
t. simenon (mail):
The entire compensation structure doesn't need to be overhauled just because one judge decided to father 7 children.
9.20.2009 9:22am
Cornellian (mail):
If Judge Larson ends up being a partner at a major law firm he'll make a lot more money at the price of never seeing those 7 kids of his.
9.20.2009 10:31am
BABH:
The Federal benefits package, including pension, TSP and medical, makes a District Judge's compensation package worth at least $260,000 (assuming an average age of appointment of 50, retirement at 70, death at 85).

This doesn't include the enormous value of predictable hours, social prestige, and tenure.
9.20.2009 10:36am
NotALawyer:
You need more data than just the resignation-before-retirement rate. I would also like to know how often a potential judge is approached by an administration and tells them he's not interested because of the pay. If that rate is also low - or most of those approached are willing to take the job - then judicial salaries aren't too low.

But I do have reason to believe that the not-interested rate might be relatively high. From my limited hearing of gossip among my colleagues, it does seem that one reason the Obama administration is having trouble filling positions with people who otherwise would be economics professors is that these jobs pay so little. At least I've heard whispers that a good number of professors, and more than is usually the case, are simply saying they aren't willing to take that kind of pay cut for even a few years. I know there is no way I would do it for either party at this point in my life.
9.20.2009 10:39am
some guy:
It is true that these salaries are less than what many judges could make as partners at big law firms.

I think the more important issue is that these salaries are less than what junior associates make at big law firms. And the salaries are not merely less than what they would make as partners, they are less by a factor of 10-to-1 or more. No matter how attractive a judgeship was several years ago, it is not unreasonable for someone to take a job where his next two years' salary would equal be equal to more than two decades of judicial pay.
9.20.2009 10:57am
drunkdriver:
NotALawyer, although it does happen that administrations approach people about judgeships, demand for judicial appointments is so great that it's not the norm. Most of the time, it's the lawyers going to the administration begging to become judges, and not the other way around. If a state has a senator from the president's party, the senator's opinion about who should be a district judge is deferred to. Many of these lawyers have worked the system for years, raising money for their party and the like.

I'm not as familiar with circuit appointments but my understanding is that since Reagan those decisions are generally made in Washington with much less deference to senators. Even there, you have the usual clamoring from prestigious lawyers mining their connections, to district judges floating their names as promotion material. People uninterested in the judiciary for whatever reason just don't put themselves in the pipeline.

I'm curious about Orin's comment on "the modern trial docket"-- I'm not familiar with what he means by that. Orin, are you saying that the content of cases is different now than in the past? How so? Or are you saying that the way federal courts push cases through their docket leaves less work for judges to do?
9.20.2009 11:14am
Joseph Slater (mail):
I would make an absolutely disastrous judge by any measure

Whoa, whoa, whoa. I don't know you, D.O., but you have violated the First Rule of commenting on legal blogs: every commenter is naturally smarter, more learned, and more principled than the folks who are actually judges.
9.20.2009 11:23am
David M. Nieporent (www):
Orin, are you saying that the content of cases is different now than in the past? How so?
Presumably he's referring to the massive federalization of routine state-law crimes?
9.20.2009 11:48am
NickM (mail) (www):
Cornellian - Judge Larson could easily double his income by working as an arbitrator for JAMS or one of the other major ADR firms in CA, without working more hours than he currently does. CA state court judges routinely leave the bench after a decade or less to do that, and they make slightly more in straight salary (though I'm not sure about the benefits package value) than federal district judges do.

Nick
9.20.2009 11:48am
Steven Lubet (mail):
Orin asks:


If someone were to give George Mason Law $50 million to be used to pay higher faculty salaries, could that money be used to get George Mason a substantially better faculty?


This is an inapt comparison because law schools compete with each other. George Mason would presumably use extra funds to lure faculty from, say, Columbia or Duke. But judicial districts don't compete for judges -- they are all paid the same rate.

So here is a better question: Would an across the board raise of 10% (for all law professors everywhere) increase the overall quality of the professoriate? It's hard to see how it would.
9.20.2009 1:08pm
frankcross (mail):
Well, judicial districts do compete for judges, they have other alternative nonjudicial employment. For anyone with the most basic understanding of economics, you cannot dispute the claim that higher pay will attract higher quality workers. It's how the economy works. Ilya's right about nonmonetary compensation, but monetary compensation is still relevant. The retirement evidence doesn't mean much, because the economic effect should occur at the recruitment level (Larson notwithstanding).

I think the case for Ilya's position (may be right) is:

a) the higher quality effect would be quite marginal, and

b) the federal judicial selection process is not like free markets and may not successfully screen in the higher quality judges who would become available.
9.20.2009 1:29pm
fishbane (mail):
It is just as untestable as, say, doubling, salary for judges, but I think a more interesting question is what would happen as salary is reduced. How many current judges would opt for another career if salaries we dropped by, say, 10%? 15%?
9.20.2009 2:01pm
Bruce Hayden (mail):
I think the more important issue is that these salaries are less than what junior associates make at big law firms. And the salaries are not merely less than what they would make as partners, they are less by a factor of 10-to-1 or more. No matter how attractive a judgeship was several years ago, it is not unreasonable for someone to take a job where his next two years' salary would equal be equal to more than two decades of judicial pay.
And how many junior associates at Big Law firms are getting jobs now paying that amount of money? And next year is likely to be much worse. A lot of the new associates just hired were a result of offers that were going out as the economy went into free fall, and a lot of law firms are expecting to hire a lot fewer next year. Not a good time to be getting out of law school, and likely not all that good to be a high priced junior associate at such a firm.

And it will be interesting to see how many of those partners at those big firms making 10X survive too, esp. at those obscene levels.

Besides, just how many attorneys make over a million dollars a year in those big law firms? My guess is in the low thousands, if that, out of millions of lawyers in this country.

Yes, a retiring federal judge may be able to slide into a partnership position in a decent sized firm as a result of his resume (except I would expect "of counsel is more likely"). But what we are really talking about are the number of lawyers who could get that sort of job in the first place, without the Judge before their name.

I think that if you were to look at what most lawyers make in this country, these judges are making on the higher end. I know a lot of attorneys who make a lot less, and esp. ditto for many state level judges, who would love to move up to the federal level.
9.20.2009 2:06pm
OrinKerr:
This is an inapt comparison because law schools compete with each other. George Mason would presumably use extra funds to lure faculty from, say, Columbia or Duke. But judicial districts don't compete for judges -- they are all paid the same rate.

As Frank suggests, the question is not whether people compete to be judges in different districts: The competition is between different legal jobs and being a judge. The same goes for law professor salaries, within reason: Over time, you would end up with a considerably different set of legal academics if a typical law professor salary is $160,000 than if it is $400,000 or $50,000.
9.20.2009 2:07pm
Gene Hoffman (mail) (www):
Glaringly absent from this debate is the cost of living. $165K is an excellent salary outside of core urban areas. Living in Los Angeles, DC, or San Francisco with a family would severely tax a former partner used to making north of $500K yearly in those areas.

-Gene
9.20.2009 2:12pm
Steven Lubet (mail):
Judicial districts do not compete with each other for judges, but law schools do compete with each other for faculty. Thus, Orin's question about a GMU pay increase remains inapt. The correct comparison would be an across-the-board law faculty raise (at all schools at once) to an across-the-board judiciary raise.

Whether or not I have "a basic understanding of economics," it is questionable whether higher incomes always attracts "higher quality workers." What is true is that higher pay attracts workers who are more able to compete for the better paying spots. In investment banking, for example, higher pay attracted people who were more able to generate short-term, high-risk profits. Paying them more would only have made matters worse.
9.20.2009 2:17pm
yankee (mail):
I think the case for Ilya's position (may be right) is:

a) the higher quality effect would be quite marginal, and

b) the federal judicial selection process is not like free markets and may not successfully screen in the higher quality judges who would become available.

I would add that if salaries were raised to something competitive with the market rate, this would have effects beyond an abstract increase in "quality."

1) Self-interested and altruistic incentives tend to crowd each other out. To the extent that the desire to "serve the public" drives people to want to serve in the judiciary, a significant compensation increase would reduce (or eliminate) this incentive.

2) The lawyers who are uninterested in the judiciary now, but would be if it paid a lot more, are disproportionately those who place a high value on money relative to other values like free time, helping others, job security, prestige, and power. A significant compensation increase would therefore increase the number of judges who care a lot about money.

These are not necessarily bad effects, but they would have effects on the composition of the judiciary beyond giving us "higher-quality" judges.
9.20.2009 2:20pm
yankee (mail):
Glaringly absent from this debate is the cost of living. $165K is an excellent salary outside of core urban areas. Living in Los Angeles, DC, or San Francisco with a family would severely tax a former partner used to making north of $500K yearly in those areas.

It would severely tax a lawyer without a family too. A single person with no kids and a lifestyle based on $500k income would have to make many adjustments (less expensive mortgage, less expensive car, less eating out, less expensive vacations, less flashing money around on dates). The major difference is that the partner with kids will probably have to pull her children out of private school and will certainly have to give up the nanny.
9.20.2009 2:32pm
ArthurKirkland:
Might not increased compensation attract lesser candidates in at least some circumstances?

Competition for county judgeships in my neighborhood is crowded by candidates for whom a $150,000 position (provided by voters) would be the best job they could ever get, far better than that available in private practice.

Candidates who already have enough cash, or for whom salary isn't an overwhelming factor, often do not run as hard (time, effort, money, tolerance of demeaning tasks) as those who see a robe as the most golden ring they could ever grab.

Most of those who have run the gauntlet for financial reasons have been poor judges, in my judgment.
9.20.2009 2:44pm
troll_dc2 (mail):
For many years, I ran a publication that publishes judicial opinions in a specific field of law, and I became familiar with the analytical skills and writing abilities of a lot of judges (and/or their clerks). (When I had the time, I used to give them letter grades.) After a while, I noticed that district judges who had been magistrate judges beforehand tended, on the average, to produce more sophisticated decisions than other district judges. Perhaps this was due to their constant involvement in resolving discovery disputes and evidentiary issues that district judges often could avoid.

A magistrate judge who becomes a district judge gets a pay increase, more authority, and more prestige. Such a person seems unlikely to quit the job; if he could make a go of it while a magistrate judge, I doubt whether he would regard the pay of a federal judge to be a barrier.
9.20.2009 3:03pm
tvk:
I don't think there is any question that we attract "qualified enough" people to be federal judges. But let me ask, is the President overpaid? Surely, even if we lowered the salary of the president to $1, we would still attract many highly qualified people to be president. It is just that they would all be independently wealthy. In fact, George Washington (who was independently wealthy) had to be persuaded to take a salary as president precisely so that his successors would not have this pernicious self-selection effect.
9.20.2009 3:13pm
frankcross (mail):
I think more pay attracts higher quality workers across the board. The problem with investment banking was the definition of quality (they wanted and the compensation system incentivized high risk short term profits, and they got guys who did that quite well).

To truly reflect on this, lets get rid of the status quo bias. The theoretical arguments against an increase in pay would also support a decrease in pay (setting aside the constitutional problem). The probability that the status quo is exactly right would surely be approximately zero. So, for Ilya and others who oppose a pay raise, how much do you think judicial salary should be reduced (in your optimal world)?
9.20.2009 3:27pm
alkali (mail):
If part of the goal in assembling a federal bench is to get the best lawyers from different areas of practice and with different backgrounds, judicial compensation matters. My sense is that at current levels of compensation, you are going to get a disproportionate number of former prosecutors and criminal defense attorneys, for whom judicial compensation at current levels is quite attractive, and fewer people from other areas of practice. You are also going to see disproportionately more single people, childless people, and people who have inherited wealth or who have wealthy spouses, not that any of those are bad things. Those imbalances will be significantly more pronounced in areas with high costs of living. I don't get the sense that any of those imbalances are so severe as to threaten the good operation of our courts, but presumably we don't actually want to get to that point.

As a cranky civil litigator, my view is that there is a real problem with judges not understanding the costs of discovery and motion practice. The example that comes to mind is the case a few years ago in which Judge Posner -- in my view, a great judge -- chopped a fee request essentially based on his shock that a motion could cost so much to prepare and file. From that perspective, I would like to have some civil litigators on the bench who can speak from recent experience, and if we have to pay judges more to get that perspective represented then it is well worth it.
9.20.2009 3:35pm
Harry Eagar (mail):
Judges don't pay rent, for Westlaw subscriptions or for secretaries etc.

Their discretionary income is way higher than that all but a few lawyers in private practice.
9.20.2009 3:53pm
EMG:
But Ilya, life is actually easier with less money, right? So it's all good.
9.20.2009 4:04pm
Steven Lubet (mail):

The probability that the status quo is exactly right would surely be approximately zero.


The optimum judicial salary surely falls within a range that might well include the status quo. In any case, the question is not whether the current salary is perfect, but rather whether a salary increase is necessary to improve the quality of the judiciary in some measurable way.

For the record, I am not at all opposed to a salary increase for judges, but I think that the market-based arguments are extremely weak. To paraphrase Frank Cross, anyone with a basic knowledge of law firm economics would know that the highest paid partners are not the best lawyers.
9.20.2009 4:13pm
frankcross (mail):
Steven, I think you're wrong about law firms. The highest paid partners create the most value for the firms. It's the same issue as with the investment banks issue. The definition of quality of law firms is not lawyering quality but includes rainmaking ability. That is best for the firms' purposes.

There cannot be a "range" for an optimum. It is plausible that the current salary is close enough and believable to me that increases would not bring significant benefits. But I'm curious about where those who make the theoretical arguments think judicial salary should be set.
9.20.2009 5:13pm
ChrisTS (mail):
EMG:
But Ilya, life is actually easier with less money, right? So it's all good.

Only if you want to move your family.
9.20.2009 5:41pm
alkali (mail):
... anyone with a basic knowledge of law firm economics would know that the highest paid partners are not the best lawyers.

I think this misses the issue a bit. Taking (for example) the set of partners at American Lawyer 100 firms, it's not as if some partners at those firms make more than federal judges and some make less, and we're arguing about which group the better lawyers fit into. Absent exceptional circumstances -- e.g., a partner on leave or phasing into retirement -- all of those partners make much more than federal judges do.
9.20.2009 6:06pm
OperationCounterstrike (mail) (www):
The solution is not to increase the judges' pay; it's to lower the pay of lawyers who are NOT judges.

Let's pass a law making it illegal for anyone who holds a law degree to make a total income of more than thirty-five thousand dollars per year. Violators get the death penalty.

Then the judges wouldn't be giving up the big money by being judges.

Problem solved!
9.20.2009 6:44pm
Steven Lubet (mail):

The highest paid partners create the most value for the firms. It's the same issue as with the investment banks issue. The definition of quality of law firms is not lawyering quality but includes rainmaking ability. That is best for the firms' purposes.


Compensation for rainmaking might be best for law firms, Frank, or it might be a race to the bottom (diminishing quality of life for everyone involved, for example). High salaries for short term profits turned out not to be in Lehman Brothers interest. Markets are pretty good at setting relative prices, but that doesn't always tell us much about absolute value.

That is even more the case with judging, as we cannot use revenue generation as a measure of the quality of a judge. The market argument for higher salaries, however, basically claims that the judiciary cannot attract the highest revenue producing lawyers (that is, law firm partners), but those lawyers would not necessarily make the best judges.

Perhaps there cannot be a range for a theoretical optimum, but of course there is a practical range for the most beneficial judicial salary, given all of the unmeasurable variables.

I have no idea what the optimum federal judicial salary is, and neither does anyone else. The current salaries appear to attract a capable and talented group, with many equally capable and talented people waiting in the wings. I have seen no actual evidence that there is an untapped group of 1000 superlawyers who would be attracted by any realistically enactable salary increase.
9.20.2009 7:35pm
Mike McDougal:

As a cranky civil litigator, my view is that there is a real problem with judges not understanding the costs of discovery and motion practice. The example that comes to mind is the case a few years ago in which Judge Posner -- in my view, a great judge -- chopped a fee request essentially based on his shock that a motion could cost so much to prepare and file. From that perspective, I would like to have some civil litigators on the bench who can speak from recent experience, and if we have to pay judges more to get that perspective represented then it is well worth it.

The way many judges treat awards of attorney's fees is appalling. In my practice most of my cases involve either contractual or statutory provisions that mandate an award of "reasonable" attorney's fees. The problem is that "reasonable" is a standard that has absolutely no legal bite on appeal (fee awards are reviewed for abuse of discretion), so judges feel free to do whatever the hell they want -- and they often do. I often have to tell clients that they have an excellent case, that there is a mandatory fee award provision, and that pursuing their rights will be riskier than they imagined because a judge can obliterate the economics of the case with an arbitrary stroke of the pen at the end of the case.
9.20.2009 7:48pm
Mike McDougal:

it is not unreasonable for someone to take a job where his next two years' salary would equal be equal to more than two decades of judicial pay.

Virtually no federal judge is in a position to be paid like a top revenue generating partner. As someone suggested above, the typical federal judge would probably be of counsel.
9.20.2009 7:51pm
frankcross (mail):
Steven, I'm not sure we are so much in disagreement. I think it is pretty clear that higher pay for achieving certain ends will produce higher quality for those who achieve those ends. I thought you were disagreement, but I'm not sure.

As I understand you now, you are saying that higher pay may not be beneficial because the ends compensated are not so beneficial. This is surely sometimes true. And you are right that the translation to the market is somewhat inapt, because it's not a market.

My point is simply: increased pay will attract some additional candidates. That, I think is tautological economics. The amount by which the additional candidates will be better is uncertain, it might be very small or even zero, given the selection process. But it will provide Presidents with at least some more choices, if you think that's a good idea.

But of course the cost of higher salaries is also very small, in the context of the federal budget.
9.20.2009 7:55pm
Dave N (mail):
I have been waiting to see what, if anything, Professor Cassell has to say.
9.20.2009 9:51pm
Dave N (mail):
BTW, Judge Larson resigned because he wanted to make more money, whereas last month Judge Brian Sandoval of the District of Nevada resigned in order to re-enter the grubby world of politics and run for governor.
9.20.2009 9:57pm
Bored Lawyer:

Glaringly absent from this debate is the cost of living. $165K is an excellent salary outside of core urban areas. Living in Los Angeles, DC, or San Francisco with a family would severely tax a former partner used to making north of $500K yearly in those areas



This is a general problem that cuts across much of what the federal govt. does -- including salaries of federal employees and the graduated income tax. As you say, the same salary can make one well-to-do in a rural state but just getting by in NY, LA, SF or DC. In a fair world, both federal salaries and tax brackets would take this into account. (The private sector already does -- salaries in these areas are typically higher than in areas reflecting lower costs of living.) But I am not holding my breath for such a change.
9.20.2009 10:16pm
hattio1:
Joseph Slater says (in response to DO)

Whoa, whoa, whoa. I don't know you, D.O., but you have violated the First Rule of commenting on legal blogs: every commenter is naturally smarter, more learned, and more principled than the folks who are actually judges.


The problem is that just being smarter, more principled and more learned than actual judges (which, of course, I am) does not mean I would be a better judge. You also have to be unbiased. Maybe DO was commenting on his own bias?
9.21.2009 1:00am
An Old Judge (mail):
This may have been noted earlier, but the site keeps using out of date figures as to judicial salaries. The current pay for district judges is $174,000, while the salary for circuit judges is $184,500. As an advocacy point, your credibility increases with your accuracy.

That being noted, I am with the skeptics on this one - it is not that a judge cannot survive on the current salary, it is simply that the judge is choosing to earn more in another capacity.
9.21.2009 9:47am
Joseph Slater (mail):
hattio1:

Fair point, but I should have added that the typical commenter on a legal blog also thinks s/he is less biased than average judges.
9.21.2009 10:25am
Teller:
"s/he is less better biased than average judges."
9.21.2009 11:43am

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