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.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.
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.
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.
Related Posts (on one page):
- Chief Justice Roberts claims that low judicial pay is a "constitutional crisis":
- How Much Should Federal Judges Be Paid?: