Chief makes judges’ pay the top issue
Chief Justice John G. Roberts, Jr., continuing the efforts of his two predecessors to persuade the public and Congress that federal judges need better pay, made that campaign the single focus of his annual end-of-year report Monday morning. “I am going to discuss only one issue — in an effort to increase even more the chances that people will take notice,” Roberts said in calling for “a substantial salary increase” The usual laundry list of statistics about the federal courts’ work showed up in an appendix. The full report can be found here.
Roberts made both constitutional and statistical arguments to bolster his lament over “the failure to raise judiical pay.”
The issue, he said, “has now reached the level of a constitutional crisis.” He argued that “inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law — even when it is unpopular to do so — will be seriously eroded.” After decades of “congressional inaction,” he said, many judges are leaving the bench to return to private law practice — 17 in the last two years, 38 in the past six. There will also be a decline in the quality of persons willing to accept a lifetime appointment, the Chief Justice said. The judiciary, he said, threatens to be dominated by judges who are so wealthy they can afford to be indifferent to the salary level, or people for whim a judicial salary is a pay raise.
Statistically, the Chief Justice cited three comparisons. First, he said, in 1969, federal district judges made 21 percent more than the dean at the Harvard Law School and 43 percent more than its senior law professors. Today, the judges are paid about half what the deans and senior professor at top schools are paid, he said. (”We do not even talk about comparisons with the practicing bar anymore,” he said sadly, given that first-year law graduates in some cities will make more in the first year than experienced federal judges.
Second, the Chief Justice siad the average U.S. workers’ wages have risen 17.8 percent in real terms (adjusted for inflation) since 1969, while federal judicial pay has declined 23.9 percent.
Third, Roberts noted a significant chance in where federal judges come from — especially trial judges. In the 1950s, roughly 65 percent came from the practicing bar, with 35 percent from the public sector. Today, roughly 60 percent come from the public sector and less than 40 percent from private practice. That, he said, “changes the nature of the federal judiciary.”
The appendix to Roberts’ report contains some interesting details about the impact on the lower federal courts of the Court’s major decisions on criminal sentencing, U.S. v. Booker and Blakely v. Washington.
(NOTE: The Supreme Court, in issuing the Chief Justice’s year-end report, had specified that the report was not to be released publicly until 12:01 a.m. Tuesday. The Washington Post’s website, however, broke that embargo well over an hour before the release time, and this has been picked up on the Internet. This blog felt that it could no longer observe the release time, and thus this report has appeared about 20 minutes early.)
Let’s examine some of these contentions a little more carefully.
1. A constitutional crisis? No. Labeling it such demeans the problem. The word “crisis” is the most overused word in our political lexicon in the past forty years. In a previous generation it was “fascist.” Whether it was energy, health, or education, appending the word crisis to the problem was supposed to give it a sense of urgency and make the adoption of a particular solution more poitically palatable. But all it did was dilute the meaning of the word. A crisis is something that requires immediate action or else death will result. I would say getting a heart attack victim to a hospital is a crisis; the attack of 9/11 was a crisis; the fire department responding to a burning house is a crisis. But raising the pay of people who make $150,000.00 a year to, say, $250,000.00? Please. A rhetorical question for Justice Roberts: if federal judge’s low pay is a constitutional crisis, what would it be called if President Bush stood on the White House lawn this morning and announced that he was jailing all federal judges and replacing them with people of his liking without Senate approval? A super constitutional crisis?
2. Pay comparison. This argument also needs to be looked at in a little more perspective. The real complaint is that federal judges are leaving the bench for more lucrative positions in private practice or it is more difficult to recruit private attorneys to apply for federal judgeships. Here are some numbers that need to be looked at: do federal judges make more than their counterparts in states courts? What has been the relationship between the average salary in private practice and that of an assistant United States attorney? And more important, has there been a decline in the quality of people applying for federal judicial vacancies? My experience, anecdotal at best, is that when a federal judgeship opens up, there is a plethora of well qualifiied applicants. Roberts himself probably had to take a 90% pay cut from his previous job. But the relevant inquiry is no different from, say, the one that George Steinbrenner makes every year: will an increase in pay bring about an increase in effectiveness? Is Roberts suggesting that the current crop of federal judges is less qualified and effective than it would be if the base salary were raised 50%?
3. Harvard Law School. So what? Unless all judges are Harvard law deans and professors, this is irrelevant. I wonder if the deans of the top law schools in America complain that they are unable to attract first rate talent because they cannot compete with law firm salaries? The solution? Raise the salary until you attract the talent that you desire. But this just goes back to point 2: unless their is a diminution in the qualifications and quality of the federal judiciary, there is no reason to raise salaries. Roberts, and Rehnquist before him, never admitted this crucial fact. There is an unstated assumption, probably derived from too many judges whispering in each other’s ears about the high salaries that lawyers young enough to be their grandchildren are making, that federal judges, as a matter of honor or some priniciple not rooted in economics, should make a certain percentage of a private practitioner’s salary. And let us not forget another point: a federal judge has a lifetime appointment and a very handsome pension. He or she can show up at work at 9, leave at 5, and take the weekend off. Try that in private practice!
4. Relatively low salary “changes the nature of the federal judiciary.” How? Is Roberts suggesting that there is a lower quality of justice being dispensed? Is the body of law being interpreted different from what it would be if more judges came from the private sector? This comment is probably capable of empirical analysis. Do federal judges with a government or state judicial background rule differently than do judges who come from the private sector? Saying that the background of judges changes the nature of the judiciary is rather startling and intriguing.
5. Roberts is doing exactly what Rehnquist did: being an effective advocate for federal judges. In fact, I recall about five years ago, Rehnquist personally met with Bush to hand him the annual state of the judiciary report and implored him to increase judicial salaries. Rehnquist routinely defended federal judges who were attacked for political reasons. The overwhelming majority of federal judges will never leave their posts. The pay, benefits, and prestige are just too great. But reducing this issue to one of a “cirsis” reduces the seriousness of both the courts and the problem.
Comment by Dennis Bedard — January 1, 2007 @ 7:52 am
I agree with Dennis Bedard that the word “crisis” is demeaned when it’s tossed around so carelessly.
But this doesn’t mean the basic point is without merit. Do you want a Federal judiciary where most of the judges haven’t had much experience in the private sector? I don’t.
To make the point that Federal judges are underpaid, Roberts needed a point of comparison. He happens to have used Harvard faculty salaries as an illustration, but he could have used just about anything. As he noted, these days the top law school graduates can command higher starting salaries than experienced federal judges.
Comment by Marc Shepherd — January 2, 2007 @ 8:51 am
The issue the Chief Justice raises is hardly unique to the judiciary and has a common cause across the federal government.
The federal government systematically pays senior executives and professional less than the market would pay for positions of comparable stature.
The Secretary of Defense makes less than many school superintendents, college presidents, and branch bank presidents, despite having much greater responsiblity. Generals who lead tens of thousands of soldiers often make less than a franchisee leading a single McDonald’s restaurant.
For the general, the cabinet secretary, and the supreme court justice accepting this in a spirit of noblesse oblige in exchange for the power and prestige of the post is an easy choice. The real dilemma is for the colonels, the deputy undersecretaries, and the trial court judges, for whom the responsibilities are still immense, but the intangible benefits are less striking.
Since our system makes it relatively hard for senior bureacrats to benefit directly during their tenure from corruption, many look to job offers after they leave their posts, or are (particularly in the case of judges) so politically motivated that even the power associated with a lesser post is enough to make up for the lost compensation.
The squeeze at the top is largely a product of the linkage of senior professional and executive pay (including judges, cabinet members, and senior political appointees) to the pay of Congress and the President, for whom pay increases are a political liability and the formal compensation is insignificant compared to the cost of acquiring the office.
Meanwhile, the federal government systematically provides a better deal to those at the bottom of the pay scale (not only in terms of pay, but in terms of benefits and job security) than the private sector would for comparable positions. Few comparable low level positions would provide defined benefit pension plans, health insurance, or the right to be fired only for cause after due process. This has its roots in a history of patronage, strong government employee’s unions (in jobs that by their nature are hard to outsource), and the politically sensitive nature of the crude policies that take a one size fits all approach to federal employees.
Only somewhere in the middle of the GS ranks is parity between the private sector and federal government employment reached.
Incidentally, it is also worth noting that the pay gap between the highest paid federal judge and the lowest paid federal judge gives the judiciary one of the flattest pay scales of any modern hierarchical organization.
Comment by Andrew Oh-Willeke — January 2, 2007 @ 7:50 pm
“The issue the Chief Justice raises is hardly unique to the judiciary and has a common cause across the federal government.”
This is true enough, but I guess the question is if the problem is — as argued — particularly problematic recently as compared to the past.
As to the faculty comparison, the problem appears to be that they are not quite comparable. See the third comment for some arguments made in this department. So, one has to be careful there.
Overall, his case might be right — I don’t know enough to say — but I agree the argument is being made somewhat poorly. The use of hyperbole esp. won’t impress the people he needs to influence.
Comment by Joe Paulson — January 2, 2007 @ 9:21 pm
Is there any empirical or even reliable anecdotal evidence of top private firm lawyers turning down judgeships? I think if it is in fact the case that the administration has to “dig deep” to find suitable candidates, then pay would be an issue. But I’m under the impression that spots on the bench are highly coveted. $165k seems like a fair bit of money to me…
Comment by Andy Grewal — January 4, 2007 @ 4:26 am
Just this past week, Justice Kennedy testified before the Senate Judiciary Committee on this subject. He seemed almost moved to tears as he lamented that he could not recruit judges because the private sector pays lawyers so much more. The committee members, most of whom I greatly admire and have deep respect for, seemed to share in his grief over the state of impoverishment forced on Federal Judges -
Until Senator Dick Durbin brought up the fact that the lowest-paid Federal Judges make more money than 95% of the rest of Americans. He then added that if they were given the $100,000 raise that some say would help the problem, that the judges would then be in the 99th percentile of earners in America.
Now, I realize that private practice usually pays much better than any judgeship - but it always has, and always will. The Justices argue that they cannot get the quality of judges that they have traditionally had. This is most probably true, but I think it has less to do with the pay than they think.
The pay disparity between the private and public sectors has always been there. Soldiers don’t make as much as private security operators. English teachers don’t make as much as authors. Mayors don’t make as much as CEOs. What is missing these days has more to do with a decline in the value our society puts on public service. We teach our children to go out and get what they can get - the more the better, without impressing upon them the value and the rewards of giving. There is nothing wrong with making money. I hope my children make lots of it. But I also hope that I am able to instill in them a desire to serve their fellow man in whatever ways they feel called to serve.
Many young people today become doctors and lawyers because that is what their parents wanted them to become. Many of those parents want that mainly because it will afford their children wealth and status, and they transfer that attitude to their children without emphasizing the intangible benefits of those professions that can be worth even more to them.
Judges should be lawyers that could be making lots of money in private practice, but choose a less lavish life because of their desire to serve. Few people seeking a judgeship in modern times do it for the money, and that is the way it should be. Judges should make a comfortable living, and nobody can argue that a $165,000 salary that puts them in the 95th percentile of earners in America is not comfortable.
If we pay elected and other governmental employees amounts that equate to the salaries of the wealthiest workers in America, we create for ourselves an Aristocracy - and we aren’t far from it now.
Comment by JC Garrett — February 18, 2007 @ 6:53 pm
And the federal benefit package, which extends for life would add more than a well paid attorney in private practice{not being compensated for overtime} would never hope to receive.
Comment by Chris Spicher — April 27, 2008 @ 11:01 pm