Baseball Crank
Covering the Front and Back Pages of the Newspaper
January 17, 2007
LAW: Judicial Pay

You know, Chief Justice Roberts could write the phone book and make it readable. His report on judicial pay - really a brief directed to Congress - is lucid and to the point, focusing on how stagnant judicial pay skews the membership of the judiciary away from private practitioners. And he focuses at least implicitly on the fact that judicial independence is undermined if federal judges are likely to have one eye on the exit to make more money.

I don't quite buy the idea that judges are scandalously underpaid in the abstract. Yes, it's a challenge to live in New York City and put your kids through college on $150,000 a year, but let's be real here - a whole lot of people get by on a whole lot less (I'm guessing that even with the high cost of living here, the median income is significantly less than half the salary of a federal district judge), starting with the Marshals who protect the judges. What is ridiculous is that judges make less money than even junior associates at the big firms, lawyers who (as Roberts dryly notes) are not yet senior enough to set foot in those judges' courtrooms. The government has a persistent habit of paying its most skilled employees (like lawyers) far less than what they could make in the private sector, while paying its least skilled employees (like toll collectors) far more than what they could make in the private sector. Maybe fairness isn't the most compelling argument, but you can't deny the Chief's point about how pay affects the composition of the judiciary. Absent a good reason to think that judges really are worth a lot less than they were 35 years ago, Congress should listen to the Chief.

UPDATE: I should note one perverse trend, which I suppose could be argued to support low pay. Maybe this is just anecdotal, but it seems to me that the lower pay of government lawyers leads to more women taking those jobs. The economic reason is simple, and equally applicable to judging:

1. Government law jobs are seen by many lawyers as more desirable than private practice in its various forms, for a variety of reasons.

2. However, such jobs entail taking a significant pay cut compared to private practice.

3. Women (especially female attorneys), being more likely than men to be married to a higher-earning spouse and less likely than men to be the sole breadwinner for a family of three or more, are likely to be less sensitive (on average) to salary in choosing legal jobs (this is even before we consider whether women are more likely to be sensitive to other considerations such as hours and flexible schedules).

4. Therefore, all other things being equal, you would expect more women to take the more desirable but lower-paying jobs, and more men to take the less desirable but higher-paying jobs.

Posted by Baseball Crank at 12:02 PM | Law 2006-08 | Comments (14) | TrackBack (0)

I will be waiting anxiously for Robert's report on how underpaid Public Defenders are...

I have a really hard time hearing people complain about making $150,000 a year.

Posted by: dave at January 17, 2007 12:02 PM

I saw an interesting suggestion -- and I can't remember where -- that federal judicial salaries should vary depending upon location. If I recall correctly, federal judicial salaries originally did vary. At some point (late in the 19th or early in the 20th Century?), Congress made the salaries uniform throughout the country. There should, therefore, be no constitutional impediment to reimposing varying salaries.

Posted by: elektratig at January 17, 2007 12:11 PM

Do we really want judges sitting on the bench who are in it for the money?

Posted by: javaman at January 17, 2007 1:42 PM

Most people who work for a living are, at least in part, in it for the money. I mean, think about how any of us approaches the decision to take one job over another, or change jobs: you weigh a whole bunch of the different factors, but money will always be one of them. The goal is at least to reduce the pool of qualified people who just say "that's too big a pay cut."

Posted by: The Crank at January 17, 2007 1:50 PM

In the abstract I think its better that we have 'citizen judges' rather than a permanent judging (IE ruling) class, so it would be my preference that judicial posts would be attractive to successful private practice lawyers.

But I'm conflicted, because one would think that a federal judicial post would be so prestigious that that would be a significant part of its compensation. I don't know if Roberts (and Rehnquist before him) is saying this because its true, or because he has to say it as the head of the federal judiciary.

In any case, I've rolled my eyes about this one for years. I too have difficulty feeling sorry for people making $150k, but I don't have a problem with giving these guys raises to catch them up with their private sector counterparts - IE whatever law school profs make at least.

Posted by: Dwilkers at January 17, 2007 2:09 PM

I don't see how the comparison to attorneys in private practice is apt. Do federal judges have to bring in any clients? No. Do they have to worry about their realization? No. Can they be fired? No. Sure, as Crank says in the post, when people look at changing jobs, money is one of the factors. But it isn't the only factor. Issues like job security and a focus in private practice on the bottom line are also factors - and I'd argue those factors are increasingly relevant to private practice attorneys.

Roberts points out that, over the past X years, the pay of judges has gone down relative to others and also we've had more judges from government rather than private practice. I see correlation, but no evidence of causation. Moreover, why does Roberts think that the decreasing percentage of lawyers from private practice leads to a decrease in quality of judges? Why the assumption that government practice lawyers are worse than private practice lawyers? The changing mix of backgrounds doesn't seem to me to necessarily stem from changes in judges' relative pay, nor does it seem to me to necessarily result in changes to judges' relative quality.

In short, I don't see any evidence that judges' quality has decreased. This is a solution in search of a problem.

Posted by: A.S. at January 17, 2007 3:22 PM

Oh, and Roberts correctly notes that there is no shortage of people who would be happy to take federal judgeships. I would be happy to give up my partnership and take a 1/2 pay cut to do so, so long as I never have to read another realization report ever again.

Posted by: A.S. at January 17, 2007 3:25 PM

So, I guess public service is not what it once was. I find it sad that someone could take one of the most prestigious jobs in their career field and talk about money. It is called public service for a reason. Todays assignment should be defining what the term "Public Servant" really means.

Posted by: javaman at January 17, 2007 3:37 PM

I don't think it's inconsistent with public service to say that the money matters; almost nobody becomes a federal judge or government lawyer mainly for the money (although Roberts notes that there may be some folks for whom the salary is a pay raise). The same is true of cops, soldiers, teachers, etc. But in all cases, the money does factor into who takes and keeps the job. That's the real world.

A.S. - I'm not saying the pay should be equal, just a little more competitive. And yeah, I'd take the job too.

Posted by: The Crank at January 17, 2007 4:27 PM

Decent pay is an issue. I'm no lawyer, and I don't want judges to be in it for the money, but they generally are in it for the prestige and power. And they are actually supposed to be intelligent and well read. So I see nothng wrong with trying to make such a jo at least attractive to someone who also has to feed a family. No they are not poverty stricken, but then again, they see people of the same profession making much much more, it makes them wonder just what they are doing, when they have things like college to pay for (I understand that one now, I just sent in a deposit for college for my oldest).

Also Crank, I happen to think that women't lib is what killed public education--and I agree with your stanc eon females in public service. I was born in 1955, and most of my teachers until high school, and many of them, were women too. Now, those generally smart "teachers" are probably lawyers, doctors and corporate officers. Good for them of course, but not so good for the kids. The other thing is Viet Nam. we got loads of people just a shade younger than I am who, to get out of the draft (without my lousy eyesight), well many became teachers. No wonder they opt for retirement and are so unionist. They didn't go TO teaching, they went away from the army.

Posted by: Daryl Rosenblatt at January 17, 2007 6:26 PM

Honest judges have always made far less than lawyers in private practice.

The question is, just how wide do we want to allow that gap to be, to continue to draw talented people into all kinds of public service (not just the judiciary) and to, perhaps, also stave off corruption?

It does remind me a little of the management/worker pay ratio discussion-how big can this ratio grow before the conscience is offended? Here, how small must we keep the difference to enable us to encourage good people working for the govt.?

Someone will get a contract and do a study and nothing will be settled.

Posted by: John Salmon at January 17, 2007 10:34 PM

I am not a lawyer, but I am staying in a Holiday Inn Express. But, for you lawyers clear a few things up for me. I would think to become a federal judge you would have to practice law for 20-30 years and be well respected by his/her peers and considered a legal expert. With that being said, more than likely such a practitioner of law would be very wealthy or could supplement the lost income by public speaking or writing. So, I ask the question again do we want a Pubic Servant who has served in his profession for 20 plus years and considered an expert in that field to think 150k is not enough to live on.

If one has not secured his financial well being after 20 plus years of being highly respected and successful in his lucrative career field do we really want them to be a public servan

Posted by: Javaman at January 17, 2007 11:01 PM

Judges are highly compensated. Part of their compensation is cash, and part of their compensation is prestige. Sure, the cash part is worth only $150-$180k, but the prestige part is far more valuable than that:

-- If the judge wants to be a professor, he can teach at the school of his choice.

-- If the judge feels like writing a book or an article, he will have no trouble finding a major outlet thrilled to publish it.

-- If the judge craves public adoration, it's not hard to find a roomful of people who will pay to eat lousy food while listening to him speak and then give a standing ovation.

-- The judge's kids won't have any trouble getting into prestigious private schools and universities.

-- If the judge tires of judging, he can exit to the job and salary of his choice.

So it doesn't mean anything that an associate in private practice gets paid more in cash, because they are paid far less in occupational prestige which is far more valuable. The only thing you can parlay an associate position into is another associate position.

And this doesn't even take into account the more obvious perks: being able to set your own hours, work with virtually no supervision, lifetime job security and pension, etc.

I really find it hard to believe that the salary is a deterrent to ANYONE who might want to be a judge and have a realistic chance of being so nominated.

Posted by: Keith L. at January 19, 2007 12:48 AM

I think the argument that the best and brightest are dissuaded from being a federal judge doesn't hold water-- at least for now. Could it happen? Maybe-- someday. The power/prestige/perks are great, but they don't pay the bills. I realize that $150K is a lot of money and very appealing to most Americans. But the botom line is that it's far below the salary of most law firm associates and now first year lawyers. Yeah, judges don't have to bring in clients, etc., but think of the job stress. How would you like to make decisions that affect people and their families for the rest of their lives, or even take away some lives, on a regular basis? Bottom line: equity. If you're washing dishes for minimum wage in a government building, should you get thousands less than a dishwasher in private industry? I don't think so. Public service does call for some sacrifice but if we expect our judges to use reason, then the country should as well when it comes judges salaries.

Posted by: Dorothy at January 26, 2007 8:36 AM
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