Saturday, March 22, 2008

Judicial Salaries


George Will complains that current salaries are resulting in a Bargain Basement Judiciary. To advance this argument, Will presents some misleading claims, but no actual numbers. For example,
The denial of annual increases, Roberts wrote, "has left federal trial judges - the backbone of our system of justice - earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located." The cost of rectifying this would be less than .004 percent of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary -- and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector -- from the practicing bar -- and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.
Roberts' claim predates a probable, 32% pay increase for the federal judiciary, almost certain to pass in the Senate. Assuming the House approves, a federal District Court judge will be paid $218,000.00, and a federal appellate judge will receive $231,000.00. Given that the House previously approved similar figures, there's every reason to believe that these increases will take effect. That, I believe is more than four times the median household income for the nation as a whole.

The comparison of judicial salaries to salaries from the highest-paying law firms in the nation? Sure, you're going to be able to argue that associates at those firms earn amounts comparable to the salaries of federal judges. And well in excess of state judges. And comparable to or in excess of state governors and legislators. Or U.S. Senators and Members of Congress. Or the Vice President. Or members of the Cabinet. Or mayors. Or law professors. Or state and federal prosecutors. Well, you get the idea.*

Also, when a lawyer is approached about becoming a federal judge, he does not weigh the offer against a starting salary at a major firm. Either he's in the firm, already making far more money than an associate, or he's in a different type of practice and is quite possibly making far less than the judicial salary. That's the essence of Will's complaint,
Fifty years ago, about 65 percent of the federal judiciary came from the private sector - from the practicing bar - and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.
Will provides no evidence that the quality of the judiciary has declined, or that there is a shortage of lawyers willing to take appointments to the bench. All of the evidence I see is to the contrary - we have a lot of highly qualified federal judges, and ample numbers of lawyers who would be happy to get life tenure as a federal judge. As for the idea of judges fleeing from the bench to get bigger salaries, it isn't happening. Granted, some do leave, but we're simply not going to increase judicial salaries to the point that a judge won't be tempted to earn $600,000 - $800,000 or more for walking in the door of a private firm. (If a federal judge wouldn't command that salary when leaving the bench, with the cachet of having a former federal judge on a law firm's résumé, it's safe to assume that the same judge would not be deterred from the judiciary by only making $218,000.00 to start.

Will's other concern appears to be that Republican presidents are appointing too many career civil servants to the federal judiciary, resulting in excessive bureaucracy. That's a creative argument, but one he doesn't back with evidence. Instead, he invokes his usual, tired anti-liberal invective:
Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law -- into every facet of life.
That's right, folks. It's the fault of liberals that the judiciary has grown under Reagan, Bush I and Bush II, and they've been advancing their liberal policies by filling the federal bench with liberal bureaucrats. More than sixty percent of federal judges are Republican appointees.

It's insipid for Will to pretend that the number of civil servants who become judges has to do with some sort of "bureaucratization" of the judiciary, or is an evil left-wing plot. Take a look at one of the leading examples of a federal judge who qualified for his position through a careful series of civil service jobs - Clarence Thomas. The civil service provides many opportunities for an administration to position and advance people on the basis of their ideology, without regard for whether those candidates would have a skill set that would allow them to advance in private practice. Some of those people might do very well in private practice, but have deliberately chosen a slower paced life with more rewarding work, great benefits and paid vacations. A federal judgeship has all of those benefits, plus a lot of prestige and a fantastic pension. For all of Chief Justice Roberts' whining about judicial salaries, and that of Chief Justice Rehnquist before him, is there any sign that either of them ever considered resigning their positions to earn more elsewhere?

Even if you choose to overlook the dominance of Republican appointees, it's also silly to pretend that the federal bench has become liberal. State courts are often hostile enough to plaintiffs, but when presented with the opportunity to do so it is the defense that will typically leap at the opportunity to have a case removed to federal court. When "tort reform" groups propose federalizing various claims, such as class action cases, it's not because they believe the federal courts will present them with a disadvantage.

There's also a legitimate question as to whether the highest paying law firms are the best source of federal judges. Will assumes so, and attributes the diminishing number of practicing lawyers who join the bench as evidence that G.W. Bush is appointing substandard judges. To the extent that any substandard judges reach the federal bench, it's the result of patronage, not a dearth of qualified candidates. The greater concern for Will, the one he won't admit, is that he is interested in judicial ideology, not qualification. And no, it's not that he opposes "activist judges" - he wants judges who will actively advance his preferred political agenda.
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Addendum: In addition to the fact that the starting salaries at top law firms are a poor point of comparison, the fact is that we're not going to compensate judges at a level comparable to the highest paying legal jobs in the country, any more than we're going to compensate cabinet members like CEO's. Will implicitly acknowledges this when he speaks of elite firm starting salaries, without choking out specific dollar figures for those neophyte lawyers. You would be hard pressed to find a partner at one of those firms earning less than $500K/year. Most of the people Will claims to want to entice to the bench are likely earning well into the seven figure range.

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