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How Much Should Federal Judges Be Paid?: Chief Justice Roberts' Year-End Report on the Federal Judiciary focuses on the salaries of federal judges:
This is usually the point at which many will put down the annual report and return to the Rose Bowl, but bear with me long enough to consider just three very revealing charts prepared by the Administrative Office of the United States Courts.

The first shows that, in 1969, federal district judges made 21% more than the dean at a top law school and 43% more than its senior law professors. Today, federal district judges are paid substantially less than — about half — what the deans and senior law professors at top schools are paid. The next chart shows how federal judges have fared compared not to those in the legal profession, but to U.S. workers in general. Adjusted for inflation, the average U.S. worker's wages have risen 17.8% in real terms since 1969. Federal judicial pay has declined 23.9% — creating a 41.7% gap.

Some of you may be thinking — "So what? We are still able to find lawyers who want to be judges." But look at the next and last chart. An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.
  I have two thoughts in response. First, while I'm sympathetic to the Chief Justice's basic argument, I think these three comparisons are fairly weak. Law dean and top prof salaries have gone up a great deal in the last 35 years in response to the changing nature of deanships and a developing market for "star" faculty members. Neither change has an analog in the nature of judgeships. Similarly, the decline in judicial pay in real terms since 1969 occurred largely during the inflationary period of 1969-1975; since 1975, salaries have stayed roughly within the same zone in real terms. Finally, the higher percentage of federal judges from the public sector could have many causes, of which judicial salaries is only one, and I'm not sure the change is necessarily a bad thing.

  My second thought is that it's unfortunate that federal judicial salaries are flat across positions. District court judges all earn one salary, circuit court judges all earn another. This means that district court judges earn the same $165k regardless of where they sit, how many cases they hear, and whether they are the living reincarnation of Learned Hand or an embarrassment to the bench. So long as raising the salary for any judge involves raising the salary for all of them, judicial salaries will be much too low for some and too high for others. Of course, uniformity serves important interests, both practical (how do you measure judicial quality?) and constitutional (see Article III, Section I). But I wonder whether there might be some way of breaking out of the uniform salary bind without interfering with those interests. For example, would be it be out of the question to pay judges in districts with higher costs of living more than judges in less expensive districts? Perhaps this is unrealistic or unfeasible, but I wonder if it might help address the Chief Justice's concerns without requiring Congress to raise salaries across the board.
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Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":

In his recent year-end report on the state of the federal judiciary, Chief Justice John Roberts has renewed his call for an increase in judicial pay, claiming that the problem has "now reached the level of a constitutional crisis and threatens to undermine the strength and independence of the federal judiciary."

Longtime VC readers will not be surprised to learn that I disagree with the Chief Justice. In series of posts a few months ago (see here and here), I criticized earlier calls for a judicial pay increase, including Roberts' argument in his previous annual report. To briefly summarize, my main points were that federal judges have an exceptionally low turnover/resignation rate and there is little or no evidence that the quality of federal judiciary is suffering because salaries are too low. Nor is it accurate compare federal judges to partners at big firms (as advocates of a pay increase often do) because judges 1) have better retirement benefits, 2) have much shorter and more flexible hours, and 3) often have more interesting work and other nonpecuniary benefits (e.g. - power and prestige) that law firm lawyers (and even we professors!) get less of.

All of these points are equally applicable to the Chief Justice's latest call for a judicial pay increase. At the very least, they deflate the somewhat hyperbolic claim that the state of judicial pay is a "constitutional crisis." As I noted in one of my earlier posts, current judicial pay is not exactly low:

Chief Justice of the Supreme Court: $212,000

Associate Justice of the Supreme Court: 203,000

Court of Appeals Judge: 175,100

District (trial) Judge: 165,200

Yes, these salaries are lower than what partners at top private firms make, but for the reasons indicated in the linked posts, that does not prevent the federal judiciary from attracting and retaining top-quality people. In his reports, Chief Justice Roberts tries to justify a judicial pay increse by comparing judges' salaries to those of other types of lawyers who make more money. However, the key public policy question is not whether judges make as much money as Group X, but whether judges' salaries are high enough to attract the level of talent we need.

In the current report, Roberts adds to his earlier argument by making the claim that judicial pay should increase because, unlike in 1969, when federal district judges had higher salaries than the Dean of Harvard Law School, today district judges earn "less than half" as much money as deans and "senior professors" at "top law schools." Even if the data Roberts cites is accurate, it doesn't justify a judicial pay increase. The vast majority of law professors earn far less than district judges do ($165,200), and while law professors have good retirement benefits, they are not comparable to those of federal judges (retirement at full pay for any judge who has reached the age of 65 and has had at least 15 years of service). To the extent that the comparison between judges and law professors is appropriate at all, one should compare total compensation, not just salaries, and one should also compare the judges to the full range of law professors, not just "senior professors" at a few top schools. The comparison to top law school deans is even more misleading than that to law professors. A law school dean has to run an institution with dozens of faculty and staff and hundreds of students, as well as be expert in law. Federal judges have much less managerial responsibility than this. It is no more inappropriate for federal judges to have lower salaries than top law school deans than it is for them to have lower salaries than corporate executives.

I don't blame Roberts for advocating increases in judicial pay; lobbying for the interests of his fellow judges is arguably part of the chief justice's job and Roberts' predecessors (Warren Burger and William Rehnquist) took the same position in their own annual reports. Nonetheless, his case for a judicial pay increase is far from compelling.

UPDATE: As Orin notes in his post on this issue, Roberts also claims that failure to raise judicial salaries as much as he believes necessary has caused what he considers a negative change in the composition of the judiciary:

An important change is taking place in where judges come from — particularly trial judges. In the Eisenhower Administration, roughly 65% came from the practicing bar, with 35% from the public sector. Today the numbers are about reversed — roughly 60% from the public sector, less than 40% from private practice. It changes the nature of the federal judiciary when judges are no longer drawn primarily from among the best lawyers in the practicing bar.

Like Orin, I believe that Roberts fails to prove that the change is either 1) harmful, or 2) caused by a decline in judicial pay relative to private sector pay. Since the Eisenhower Administration, there has been a major increase in the size and scope of the federal government, leading to the employment of many more government lawyers. The change cited by Roberts may simply be a result of the increasing percentage of lawyers working in government.

Related Posts (on one page):

  1. Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":
  2. How Much Should Federal Judges Be Paid?:
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