Judge Roberts Declares Constitutional Crisis

[Gregory Pratt]

http://volokh.com/archives/archive_2006_12...html#1167791582

 

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.

 

Garbage. Utter garbage.

Now, I don't blame him for lobbying for more money. That's fine enough. By nature we're all greedy and like maxxx dollar$$$.

 

But THIS was the ONLY THING in his annual report on the Judiciary? That's it? You've got to be kidding me.

 

It sure as hell isnt' a Constitutional crisis, and it certainly isn't so bad that Roberts should make it the sole item of his message.

 

It is not too little. The system is not messed up. You get into public service to make a mark on society. You don't do it to line your pockets. Which isn't to say that they should starve or "struggle to afford a Ford Taurus," because they shouldn't. But they don't, either. Not at all.

 

You want to get rich -- become an analyst on Wall Street. If you want to be comfortable financially but make a mark on society, do politics. How ridiculous I find this.

[NUKE_CLEVELAND]

http://volokh.com/archives/archive_2006_12...html#1167791582

 

 

 

Garbage. Utter garbage.

Now, I don't blame him for lobbying for more money. That's fine enough. By nature we're all greedy and like maxxx dollar$$$.

 

But THIS was the ONLY THING in his annual report on the Judiciary? That's it? You've got to be kidding me.

 

It sure as hell isnt' a Constitutional crisis, and it certainly isn't so bad that Roberts should make it the sole item of his message.

 

It is not too little. The system is not messed up. You get into public service to make a mark on society. You don't do it to line your pockets. Which isn't to say that they should starve or "struggle to afford a Ford Taurus," because they shouldn't. But they don't, either. Not at all.

 

You want to get rich -- become an analyst on Wall Street. If you want to be comfortable financially but make a mark on society, do politics. How ridiculous I find this.

 

 

So you don't think it's important that the Government pay a competitive salary to draw and retain top legal talent? I dont know whether you noticed or not but its only a rare individual that is motivated solely by a desire to serve, and there simply arent enough of those types with the proper credentials to be a member of the judiciary.

 

I dont know if crisis is a term I would have used here but your ire is a little misplaced.

[Rex Kickass]

Something tells me if this was written by a Clinton appointee, you'd be all up in arms about it Nuke.

[NUKE_CLEVELAND]

Something tells me if this was written by a Clinton appointee, you'd be all up in arms about it Nuke.

 

 

Something tells me you're wrong. A sensible statement is still a sensible statement regardless of who's mouth it comes out of.

[Gregory Pratt]

Screw that.

[jackie hayes]

It seems to me that each side has some good arguments, and I'd have to read a lot more to have a firm opinion. But there's no reason to be cynical about Roberts's intentions. The figures listed are in fact VERY low for good lawyers. As Roberts points out, many newly-minted lawyers will make more than those numbers. (It's very misleading to say only, "these salaries are lower than what partners at top private firms make".) I doubt anyone would refuse a SC nom over the pay, but it certainly seems plausible to me that it would be a problem in the lower courts.

[southsider2k5]

WTF is wrong with a COLA? Is it only good for people on welfare and SSI?

[NorthSideSox72]

WTF is wrong with a COLA? Is it only good for people on welfare and SSI?

Well, when you are talking about one specific job, that is different than minimum wage. A specific job like being a judge needs to keep up with its industry - in this case, top legal professionals. Minimum wage is a baseline across jobs and markets, and by nature should use a basket-style price adjustment like a COLA.

 

That's not to say you couldn't build in natural increases for judges too. Just allow, in the law, for some agency or firm to set a rate adjustment factor for legal professionals each year, and have the pay increases be tagged to that, unless otherwise overridden by Congress or X-Order.

[southsider2k5]

You don't take a job as a judge because of the salary. If you want to make money in the legal profession, there are plenty of other ways to do so. Now I do believe they deserve adequate compensation, but anytime you take a job working in a public service type sector (teacher, police, fire, public office etc), money should not be a motivation. I do believe a COLA is in-line with what the rest of government employees should get, and in many cases, do get.

[Balta1701]

You don't take a job as a judge because of the salary. If you want to make money in the legal profession, there are plenty of other ways to do so. Now I do believe they deserve adequate compensation, but anytime you take a job working in a public service type sector (teacher, police, fire, public office etc), money should not be a motivation. I do believe a COLA is in-line with what the rest of government employees should get, and in many cases, do get.

So I'll admit I'm a little torn by this. Yes, you are correct, you don't enter the legal profession as a judge to make money (even though the couple hundred thousand a year would make most people drool), you do it because you're willing to sacrifice a little in salary for other things.

 

On the other hand though, Roberts' argument does have some persuasiveness. These judges can go from making 6 figures working as a judge to making 7 figures working as a lawyer. In other words, there's very little economic reason for them to stay as a judge. So, if the salary for judges doesn't at least have some ability to rival the salaries people would make in the private sector, wouldn't it stand to reason that there would be a lot of problems in keeping judges on the bench, problems that long-term could lead to real personnel shortages?

[Jenksismyhero]

So I'll admit I'm a little torn by this. Yes, you are correct, you don't enter the legal profession as a judge to make money (even though the couple hundred thousand a year would make most people drool), you do it because you're willing to sacrifice a little in salary for other things.

 

On the other hand though, Roberts' argument does have some persuasiveness. These judges can go from making 6 figures working as a judge to making 7 figures working as a lawyer. In other words, there's very little economic reason for them to stay as a judge. So, if the salary for judges doesn't at least have some ability to rival the salaries people would make in the private sector, wouldn't it stand to reason that there would be a lot of problems in keeping judges on the bench, problems that long-term could lead to real personnel shortages?

 

 

I'm only a 3rd year law student, so maybe there are attorneys on the board with more experience, but from what I've seen judges are generally lawyers who want to be on the other side. Money is not a motivating factor. The perks are generally what interest most, coupled with the new responsibilites and role in the legal field. They're still getting paid an absurd amount compared to the average joe.

 

To me it's a ridiculous argument to say that the quality of judges is diminishing because the pay isn't adequate. If he's equating the best candidates with those that are paid the most, the only way to save the judiciary is to offer up more money than those partners would receive in private practice, which will never happen. What's a 50k or 100k raise going to matter when partners are making 8-10 times the amount of these judges. A minimal increase is not going to bring in the 'top' talent. And do we really want people motivated by money to be in those positions?

 

Much like members of Congress, the compensation is more than adequate based on the output that is produced.

[EvilMonkey]

Most people are motivated by money, it is just a matter of how MUCH money does the trick.

[southsider2k5]

So I'll admit I'm a little torn by this. Yes, you are correct, you don't enter the legal profession as a judge to make money (even though the couple hundred thousand a year would make most people drool), you do it because you're willing to sacrifice a little in salary for other things.

 

On the other hand though, Roberts' argument does have some persuasiveness. These judges can go from making 6 figures working as a judge to making 7 figures working as a lawyer. In other words, there's very little economic reason for them to stay as a judge. So, if the salary for judges doesn't at least have some ability to rival the salaries people would make in the private sector, wouldn't it stand to reason that there would be a lot of problems in keeping judges on the bench, problems that long-term could lead to real personnel shortages?

 

To be honest, I don't want people who are motivated by money in our judicial positions in the first place. That just begs for corruption to happen. Like I said, I have no problems with setting them up with raises and such, and would much prefer that it was a COLA system to ensure fairness, and the lack of politics to be involved with it.

[NorthSideSox72]

To be honest, I don't want people who are motivated by money in our judicial positions in the first place. That just begs for corruption to happen. Like I said, I have no problems with setting them up with raises and such, and would much prefer that it was a COLA system to ensure fairness, and the lack of politics to be involved with it.

Actually, I'd argue that the LESS you pay judges, the more corruption becomes an issue. Because even those with the best of intentions still live in the world of money.

 

See: cops. Lowest paid major city PD in the US? New Orleans. Most corrupt department in the US? Same.

[southsider2k5]

Actually, I'd argue that the LESS you pay judges, the more corruption becomes an issue. Because even those with the best of intentions still live in the world of money.

 

See: cops. Lowest paid major city PD in the US? New Orleans. Most corrupt department in the US? Same.

 

I'm not arguing for them to be paid less, I am arguing that they deserve COLA consideration. I also don't think that just because some scumbag lawyers can make seven figures chasing ambulences, that judges should do so also. Positions of public service have always historically paid less, than there public sector counterparts.

[Reddy]

Something tells me you're wrong. A sensible statement is still a sensible statement regardless of who's mouth it comes out of.

since when has that been your motto?